Tran and Migration Agents Registration Authority - [2022] AATA 2470

Tran and Migration Agents Registration Authority [2022] AATA 2470 (1 August 2022)
AppID:Tran and Migration Agents Registration Authority
CitationNumber: New
Division:GENERAL DIVISION
File Number(s): 2020/0296
Re:My-Yen Thi Tran
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:1 August 2022
Place:Sydney

The reviewable decision made on 9 January 2020, being the decision of the Migration Agents Registration Authority to cancel the registration of the Applicant as a migration agent under section 303 of the Migration Act 1958 (Cth) (the Act), is set aside; and in substitution the Applicant’s registration as a migration agent under section 289 of the Act is suspended until 9 January 2023.
....................................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
Regulatory – alleged breaches of code of conduct by migration agent – whether clients’ affairs managed negligently – whether financial arrangements were satisfactory, whether files and applications were properly completed – whether record keeping was up to standard – whether response to MARA was satisfactory – whether migration agent is a person of integrity – whether migration agent is a fit and proper person – consequences of adverse findings – decision set aside and substituted
LEGISLATION
Acts Interpretation (Registered Relationships) Regulations 2008 (Cth) reg 3
Coronavirus Economic Response Package (Modifications – Statutory Declarations and Notices of Intention to Marry) Determination 2021 (Cth) s 3
Evidence Act 1995 (NSW)
Migration Act 1958 (Cth) ss 276, 290, 303, 304, 305, 306, 306C, 308, 309, 310, 311A, 313, 314, 316
Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth)
Migration Agents Regulations 1998 (Cth)
Oaths Act 1900 (NSW)
Statutory Declarations Act 1959 (Cth) s 8
Statutory Declarations Regulations 2018 (Cth) reg 7, sch 2
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Bebawy and Migration Agents Registration Authority [2020] AATA 3987
Bulous and Migration Agents Registration Authority [2011] AATA 1594
Calabro and Migration Agents Registration Authority [2022] AATA 1378
Council of the Law Society of NSW v Tran [2010] NSWADT 127
Cunliffe and Anor v Commonwealth of Australia (1994) 124 ALR 120
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Hoare v The Queen (1989) 86 ALR 361
Gu and Migration Agents Registration Authority [2022] AATA 749
Hudson v Migration Agents Registration Authority [2004] AATA 1007
Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Issa and Migration Agents Registration Authority [2017] AATA 1110
Jin and Migration Agents Registration Authority [2022] AATA 1251
Jones v Dunkel [1959] 101 CLR 298
Kazi and Migration Agents Registration Authority [2006] AATA 42
Khurana and Migration Agents Registration Authority [2020] AATA 4482
Kraues v Office of the Migration Agents Registration Authority and Anor (2018) 158 ALD 493
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 90 AAR 148
Lilienthal v Migration Agents Registration Authority [2002] FCA 93
Liu and Migration Agents Registration Authority [2022] AATA 215
Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Narayanan and Migration Agents’ Registration Authority [2006] AATA 353
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Omerdic and Registrar of Ministers of Religion Victoria [2022] AATA 1765
Paddock and Migration Agents Registration Authority (Migration) [2019] AATA 3941
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
R v Scott [2005] NSWCCA 152
Raygan and Migration Agents Registration Authority [2020] AATA 1164
Rozsy and Migration Agents Registration Authority [2008] AATA 434
Shi v Migration Agents Registration Authority [2008] HCA 31
SRH and Comptroller-General of Customs (1995) 37 ALD 581
Tejani and Migration Agents Registration Authority [2009] AATA 240
SECONDARY MATERIALS
Australian Public Service Commission, APS Values and Code of Conduct: Managing Information at 4.1.2: < Kendall, Independent Review of the Office of the Migration Agents Registration Authority: Final Report (September 2014)
Commonwealth, Parliamentary Debates, House of Representatives, 27 May 1992
John Hodges, 2007-2008 Review of Statutory Self-Regulation of the Migration Advice Profession: Final Report, (May 2008)
Macquarie Dictionary (seventh edition)
Migration Agents Code of Conduct
Migration Agents Registration Authority, To complain about a registered agent: < Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Thomson Reuters, 9th ed, 2022)
Office of Migration Agents Registration Authority, Practice Guide for registered migration agents
REASONS FOR DECISION
Chris Puplick AM, Senior Member
1 August 2022
THE APPLICATION

Ms My-Yen Tran (the Applicant) was registered as a migration agent under the provisions of the Migration Act 1958 (Cth) (the Act) on 6 May 2002. At the time, the Applicant was also a solicitor who had been admitted to practice in New South Wales on 5 October 2001.[1]
[1] Tribunal documents (T-documents) at 318.
The Applicant is the principal of a registered practice MY.T. Nguyen Solicitors.
The practice currently has four employees in its offices in Cabramatta (NSW), all of whom are Vietnamese speaking[2] and specialises in providing migration assistance primarily to members of the Vietnamese community. It particularly specialises in providing migration assistance related to applications for partner visas.
[2] Transcript of hearing dated 5 July 2022 at 104.
On 9 January 2020 the Migration Agents Registration Authority (MARA) cancelled the Applicant’s registration as a migration agent claiming that she was not a person of integrity, or otherwise, not a fit and proper person to be so registered and that she had breached various clauses of the Migration Agents Code of Conduct.[3]
[3] T-documents at 14-63.
The Applicant applied to this Tribunal for a review of that cancellation decision on 15 January 2020 and the matter was heard on 4 and 5 July 2022.[4] The hearing was conducted in person and both parties were legally represented.
[4] The Tribunal had previously considered the matter of its jurisdiction to hear this application and concluded that it had such jurisdiction: Tran and Migration Agents Registration Authority [2022] AATA 1776.
At the conclusion of the hearing both parties sought leave to file final written submissions and the Tribunal set a date of 19 July 2022 for this process to be completed, by which time both parties had filed such submissions.
THE MIGRATION AGENTS REGISTRATION SCHEME
In 1992 the Act was amended[5] to establish a scheme (the Migration Agents Registration Scheme (the Scheme) whereby certain persons could be registered as migration agents and thereby authorised to give what is called “immigration assistance”[6] to clients seeking to navigate the complexities of the Act.
[5] Migration Amendment Act (No. 3) 1992 (Cth).
[6] Act s 276.
In introducing the legislation, the Minister at the time stated that the scheme was “designed to improve standards of professional conduct and quality of service.”[7]
[7] Commonwealth, Parliamentary Debates, House of Representatives, 27 May 1992 at 2937 (Gerry Hand, Minister for Immigration, Local Government and Ethnic Affairs).
The Minister identified the ills which needed to be remedied as follows:
The initiative reflects the Government’s concerns over the level and nature of complaints made against incompetent and unscrupulous agents... It also recognises the fact that many of those who are most likely to seek the assistance of agents are among the most vulnerable in our society... I do not intend to list comprehensively problems which led to the development of the scheme, but some examples include agents having been paid to lodge applications and then failing to do so; lodging applications without paying the prescribed fees, thereby not giving effect to the application; lodging applications tardily in a way which adversely affects the entitlements of applicants; and holding passports as 'security and then demanding extra payments'. There are also examples of agents providing incompetent advice because they lack even a rudimentary knowledge of the Migration Act and regulations.[8]
[8] Idem.
The legislation establishes a system whereby a person seeking to become a migration agent must apply for and be granted registration.
Registration requires that an applicant meet certain statutory requirements (for example, being over the age of 18, holding professional indemnity insurance or holding Australian citizenship or appropriate other status) and further the Act provides that they must be a person who is deemed to be a person of integrity or who is a fit and proper person to give immigration assistance.[9]
[9] Act s 290.
In addition, the Act[10] provides for the development and publication of a Code of Conduct (the Code) for migration agents and adherence to this Code is mandatory. The Minister made clear that “[t]his is a critical element of the scheme”[11] designed to ensure both the protection of consumers (“clients”) and the orderly management of the Scheme itself.
[10] Act s 314.
[11] Commonwealth, Parliamentary Debates, House of Representatives, 27 May 1992 at 2939 (Gerry Hand, Minister for Immigration, Local Government and Ethnic Affairs).
In relation to these proceedings the Code in question, upon which MARA relied, was that made and current as from 18 April 2017. This has now been superseded by a revised Code which came into operation on 1 March 2022. However, some of the matters in issue, particularly relevant to the handling of documents took place before April 2017 when a version of the Code, made originally in 2012 (2012 Code) was operational.
The 2012 Code is contained in Schedule 2 of the Migration Agents Regulations 1998 (Statutory Rule no. 53) (Cth) and makes clear (pursuant to section 1.9) that nothing in the Code is intended to displace any liabilities that an agent has under the common or statute law.
It does not appear that anything turns on any variations between the 2012 and 2017 Codes as the Applicant concedes that:
“Most (though not all) of the clauses have been consistent over the different versions.”[12]
[12] Applicant’s Response to Respondent’s Closing Submissions (Response) dated 19 July 2022 at 3.
The Scheme is now regulated by MARA whose responsibilities, powers and duties are set out in the Act.
Among MARA’s responsibilities are the registration and re-registration of migration agents; the monitoring of adherence to the Code; and the investigation of complaints against migration agents.[13]
[13] Act s 316.
Where a complaint is made against a migration agent there is a formal process which MARA must follow in investigating the claim which ensures that the migration agent against whom the complaint is made is accorded procedural fairness in the investigation and an opportunity to respond to any allegations made against them.[14]
[14] Act ss 303-305, 309-310.
If, after an investigation is completed in accordance with these requirements, MARA makes findings adverse to any registered migration agent, it is empowered to impose sanctions[15] which may range from the issuing of cautions through to the suspension of registration and in the extreme, the cancellation of registration.[16]
[15] Act s 316(1)(d).
[16] Act s 303(1).
Decisions made by MARA in respect of registration of migration agents are subject to review by the Administrative Appeals Tribunal.[17]
[17] Act s 306.
At the relevant time section 306C of the Act provided a definition of the “client” of a migration agent in the following terms:
For the purposes of this Division, if a registered migration agent gave, or anticipated giving, immigration assistance to another person:
(a) the other person is a client of the registered migration agent and, if the registered migration agent dies, the other person remains a client of the deceased registered migration agent; and
(b) if the registered migration agent becomes an inactive migration agent--the other person remains a client of the inactive migration agent and, if the inactive migration agent dies, the other person remains a client of the deceased inactive migration agent.[18]
[18] See Tribunal discussion in Hudson v Migration Agents Registration Authority [2004] AATA 1007 at [97].
By passage of the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) this definition has now been changed to read:
A client of a registered migration agent is a person to whom the agent has given, or has agreed to give (whether or not in writing), immigration assistance.[19]
[19] Act s 306C(1)
This change in definition in no way affects any of these proceedings.
The term “immigration assistance” is also defined in the Act, the relevant part of which provides:
(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...[20]
[20] Act s 276.
For the sake of completeness, it should be noted that lawyers are also entitled to provide “immigration legal assistance” and they were included in the registration scheme introduced by the 1992 amendments to the Act. This was a controversial decision, and its constitutional validity was challenged in the High Court which held (by a 4:3 majority) that it was a valid exercise of Commonwealth power.[21] The matter was then reviewed by the Hodges Inquiry which continued to support the inclusion of lawyers in the registration scheme “to achieve consistent standards of professional conduct and quality of service within the migration advice profession”.[22] A further review was undertaken by Dr Christopher Kendall in 2014[23] where it was recommended that lawyers be removed from having to be registered under the Act but rather be simply subject to their own levels of professional regulation and this change was affected by passage of the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth).
[21] Cunliffe and Anor v Commonwealth of Australia (1994) 124 ALR 120.
[22] John Hodges, 2007-2008 Review of Statutory Self-Regulation of the Migration Advice Profession: Final Report, (May 2008) at 71.
[23] Christopher Kendall, Independent Review of the Office of the Migration Agents Registration Authority: Final Report (September 2014) at [72].
It will be noted that that the cases referred to by MARA in their claims against the Applicant all refer to matters undertaken before the 2020 amendments, during which period the Applicant was providing advice to clients in both her capacity as a migration agent and in some instances as a solicitor. The latter is the case where the Applicant has signed and witnessed documents and given her qualification for so doing as “solicitor”. In any event the 2020 amendments do not affect the gravamen of these proceedings.
RELEVANT LEGISLATION
Other relevant sections of the Act are as follows:
202 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:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
308 Requiring registered migration agents to give information

(1) The Migration Agents Registration Authority may require a registered migration agent:
(a) to make a statutory declaration in answer to questions in writing by the Authority; or
(b) to appear before an individual or individuals specified by the Authority and to answer questions; or
(c) to provide the Authority with specified documents or records relevant to the agent's continued registration.
(2) If a registered migration agent appears before one individual to answer questions, that individual must record the questions and answers and give the record to the Authority.

(2A) If a registered migration agent appears before 2 or more individuals to answer questions, one of them must record the questions and answers and give the record to the Authority.

(3) A registered migration agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

(4) However:
(a) any information or document provided in response to a requirement under subsection (1); and
(b) any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (1);
is not admissible in evidence against the registered migration agent in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
309 Persons may make submissions
(1) If the Migration Agents Registration Authority is considering refusing a registration application, it must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application.
(2) If the Migration Agents Registration Authority is considering making a decision under section 303 to cancel or suspend a registered migration agent's registration, or to caution such an agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter.
(3) In this section:
"submission"means:
(a) a statutory declaration; or
(b) a written argument.
311A Barring former registered migration agents from being registered for up to 5 years

(1) The Migration Agents Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.

Note: Before making such a decision, the Authority must invite the former registered migration agent to make a submission: see section 311D.

(2) The period must not be more than 5 years starting on the day of the Authority's decision.
311D Former registered migration agent may make a submission etc.

Invitation to make submission

(1) Before making a decision under subsection 311A(1), the Migration Agents Registration Authority must give the former registered migration agent a written notice:
(a) stating that the Authority proposes to make such a decision and the reasons for it; and
(b) inviting him or her to make a written submission to the Authority on the matter within 28 days after the notice is given.
Authority to consider any submission
(2) The Authority must consider any written submission received within that period.

No submission received

(3) If the Authority does not receive a written submission, it may decide the matter on the information before it.

Submission received

(4) If the Authority receives a written submission, it may:
(a) decide the matter; or
(b) give the former registered migration agent the opportunity to appear before it and then decide the matter.
311EA Requiring former registered migration agents to give information or documents

(1) This section applies if the Migration Agents Registration Authority is considering making a decision under section 311A to bar a former registered migration agent from being a registered migration agent for a period.

(2) The Authority may, by written notice given to the former agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.

(3) A period specified in a notice under this section must end at least 14 days after the notice was given.

Offence

(4) A person commits an offence if:
(a) the person is subject to a requirement under this section; and
(b) the person contravenes the requirement.
Penalty: 60 penalty units.

(5) An offence against subsection (4) is an offence of strict liability.

Self-incrimination

(6) A person is not excused from giving information or providing a document incriminate the person.

(7) However:
(a) any information or document provided in response to a requirement under subsection (2); and
(b) any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);
is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
314 Code of Conduct for migration agents

(1) The regulations may prescribe a Code of Conduct for migration agents.

(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

316 Functions of Migration Agents Registration Authority

(1) The functions of the Migration Agents Registration Authority are:
(a) to deal with registration applications in accordance with this Part; and
(b) to monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and
(c) to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and
(d) to take appropriate disciplinary action against registered migration agents or former registered migration agents; and
(e) to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and
(f) to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and
(g) to monitor the adequacy of any Code of Conduct; and
(h) such other functions as are conferred on the Authority by this Part.
(1A) In performing its function under paragraph (1)(c), the Authority may start, or complete, an investigation of a complaint about a person at a time when he or she is no longer a registered migration agent.

(1B) However, the Authority can investigate a complaint about a former registered migration agent only if the complaint is received within 12 months after he or she ceased to be a registered migration agent.

(2) So long as the Institute is appointed under section 315, the Migration Agents Registration Authority also has the function of advising the Minister on the adequacy of any Code of Conduct.
DEREGISTRATION PROCEEDINGS

On 20 March 2017 MARA received a complaint from the Department of Home Affairs in relation to the Applicant’s conduct. MARA’s Statement of Facts, Issues and Contentions (SFIC) (at [30]) particularises this event as follows:
“(a) the Department had received information that a high number of allegations indicating that the relationships within the Partner Visa application cohort, where the Applicant was the declared registered migration agent, were not genuine;
(b) there were similarities in the documents styles and statements provided to the Department across Partner Visa applications which were unrelated except that the Applicant was the applicant's Migration agent;
(c) the statements and documents appeared to have near identical wording/phrasing;
(d) the forms of the statements provided raised concerns that the Applicant may have signed forms on behalf of visa applicants and also witnessed the declaration which the Applicant likely knew contained incorrect information.”
Further, on 25 October 2017 the Australian Embassy in Ho Chi Minh City (Vietnam) also lodged a complaint in relation to the Applicant’s conduct, again particularised by MARA’s SFIC (at [31]) as follows:
“(a) the Administrative Appeals Tribunal found that the Applicant, as Ms Ngoc Thuy Pham’s registered migration agent, was neglectful in her duties to Ms Pham in respect of the preparation of Ms Pham’s application for a visa;
(b) the Applicant did not complete the full dates of marriage or divorce prior to submitting the visa application to the Department. In the Form 47SP the Applicant advised that ‘information supplied is complete, correct and up to date in every detail’.
(c) the Applicant should not have submitted the visa application forms to the Department until the above information was supplied and the applicant signed the declaration.”
MARA then proceeded in accordance with the steps outlined in the Act and, under the provisions of section 308 notified the Applicant of the receipt of the complaints and required her to produce to MARA details of her employees together with the complete files related to 10 designated clients.[24]
[24] T-documents at 240-244. The 10 named clients are specified at 243.
On 14 February 2018 the Applicant responded to this section 308 notice and produced the relevant information and files, together with a Statutory Declaration dated 14 February 2018.[25]
[25] Ibid at 276-310.
MARA reviewed these documents and wrote to the Applicant on 9 May 2019 (under s 309(2) of the Act) advising her that it was considering imposing some degree of sanction on her as provided for by subsection 303(1) of that Act.[26]
[26] Ibid at 65-93.
The Applicant responded to this section 309 notice on 12 June 2019 providing some further documents including, inter alia, a Statutory Declaration by Mr Le Hung Vi[27] (dated 8 April 2014), copies of a cost agreement (unsigned) and screenshots of conversations between the Applicant and various clients which were primarily in Vietnamese and were untranslated.[28]
[27] In English, this name would be written as Hung Vi Le.
[28] Ibid at 107-129.
On 9 January 2020 MARA advised the Applicant of its decision to cancel her registration as a migration agent.[29]
[29] Ibid at 14-63.
As already noted the gravamen of the MARA’s findings were that the Applicant had been negligent in the management of her clients’ applications, that she had breached the Code and that in any event, she was not a fit and proper person to be registered as a migration agent.
Each of these claims needs to be examined and assessed by this Tribunal. In doing so, the Tribunal stands in the shoes of the original decision-maker[30] and must consider the evidence before it at the date of its determination, some of which may not have been available to the maker of the original decision of January 2020.[31] However, before so doing the Tribunal must digress into consideration of certain other information related to the Applicant.
[30] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[31] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
NSW LAW SOCIETY PROCEEDINGS
In its SFIC (at [28]-[29]), MARA set out certain details regarding matters between the Applicant and the Law Society of New South Wales, the statutory body responsible for the registration and supervision of legal practitioners in that State. The SFIC listed these details under a heading “Undisputed facts”. Because the Applicant formally agreed in the Tribunal hearing that the details as listed were correct in all particulars,[32] the Tribunal reproduces those sections of the SFIC directly from the submission without risk of further comment or annotation:[33]
[32] Transcript of hearing dated 4 July 2022 at 9.
[33] Further Supplementary T-Documents at 4046-4304.
“28. On 10 October 2008, the Legal Services Division of the Administrative Decision Tribunal of NSW found that the Applicant had engaged in "Professional Misconduct". The substance of the findings have been recorded on the Register of Disciplinary Action maintained by the Office of the Legal Services Commissioner as follows:
1. Acting in conflict of interest.
2. The Solicitor falsely witnessed the signing of an affidavit.
3. The Solicitor's statements to the Federal Court magistrate were misleading.
29. On 19 May 2010, the Legal Services Division of the Administrative Decision Tribunal of NSW found that the Applicant had engaged in "Unsatisfactory Professional Conduct". The substance of the findings have been recorded on the Register of Disciplinary Action maintained by the Office of the Legal Services Commissioner as follows "making a false declaration in an application for a practicing certificate". This conduct was summarized by the Tribunal as follows:[34]
6. In the 2009/2010 renewal Application the Solicitor made the following declaration:
"I declare that the contents of this application are true and correct and that I have not been the subject of any disciplinary (professional) proceedings… since my last application for a practising certificate…
7. As at 8 May 2008 and 15 May 2009 the Solicitor has, since her last respective application for a Practising Certificate, been the subject of disciplinary proceedings and her declarations to the contrary in the 2008/2009 renewal Application and the 2009/10 renewal Application were false.”
[34] T-documents at 311; Council of the Law Society of NSW and Tran [2010] NSWADT 127.
The position is therefore that on two separate occasions, (although in her evidence the Applicant initially claimed it was only once)[35] the Applicant failed to complete in full what is a crucial document for any solicitor, her Practice Certificate. Her comment was that:
“[i]t was done of the last day of renewal. Both my business partner and I back then we were doing it in a such a rush that we both neglected to tick those boxes.”[36]
[35] Transcript of hearing dated 4 July 2022 at 16.
[36] Ibid at 17.
Certain other matters arising from these proceedings were referred to in the Tribunal’s hearing and will be discussed below. The Tribunal notes that, in relation to each of the two matters in question the Applicant was also required to pay a fine related to her misconduct.
The Tribunal notes that these proceedings took place some two decades ago; the matter involved improperly acting for a family member in a matter concerning custody of a child and that nothing adverse in relation to the Applicant has been forthcoming from any of the legal professional regulatory bodies since.
STATUTORY DECLARATIONS
Statutory Declarations are important legal documents, they are more than mere pieces of paper containing information. They are given recognition and weight by the Statutory Declarations Act 1959 (Cth) (Statutory Declarations Act). That Act provides in section 8:
A statutory declaration made under this Act must
(a)be in the prescribed form; and
(b)be made before a prescribed person.
The Statutory Declarations Act goes on to provide that the form in which a statutory declaration is to be made will be provided by Regulation (reg 14) and provides a penalty of imprisonment for 4 years where a person intentionally makes a false statement in a statutory declaration (reg 11).
The form in which a statutory declaration must be made is set out in Schedule 1 of the Statutory Declarations Regulations 2018 (Cth) (Statutory Declarations Regulations). It is as follows (emphasis added):
“STATUTORY DECLARATION
Statutory Declarations Act 1959
I, [Name, address and occupation of person making the declaration] make the following declaration under the Statutory Declarations Act 1959:
1. [Set out matter declared to in numbered paragraphs]
2.
3.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
[Signature of person making the declaration]
[Optional: Email address and/or telephone number of person making the declaration]
Declared at [place] on [day] of [month] [year]
Before me, [Signature of person before whom the declaration is made]
[Full name, qualification and address of person before whom the declaration is made (in printed letters)]
[Optional: Email address and/or telephone number of person before whom the declaration is made]”
The Explanatory Statement attached to the Statutory Declarations Regulations states (emphasis added):
“Schedule 1 – form of Statutory Declaration
Schedule 1 provides the prescribed form for a Commonwealth statutory declaration, including information such as the name, address and occupation of the declarant and name, qualification and address of the authorised witness.
It also provides the declarant and authorised witness with the option to provide their email address or phone number to assist the receiving organisation to verify the form.”
Regulation 7 of those Regulations provides a list of persons who are prescribed as persons before whom a statutory declaration may be made.
Persons before whom a statutory declaration may be made
For the purposes of paragraph 8(b) of the Act, each of the following persons is prescribed:
(a) a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described);
(b) a person who, under a law of the Commonwealth, a State or Territory, is currently licensed or registered to practise in Australia in an occupation listed in Part 1 of Schedule 2;
(c) a person who is listed in Part 2 of Schedule 2.
Occupations identified for the purposes of subregulation 7(b) of the Statutory Declarations Regulations include, inter alia:
(5) Legal practitioner
…
(8) Migration agent registered under Division 3 of Part 3 of the Migration Act 1958.
While legal practitioners have always been prescribed as witnesses, migration agents only obtained this status in 2018.[37]
[37] Statutory Declarations Regulation 2018 (Cth) sch 2.
For the sake of completeness, the Tribunal notes that some temporary modifications have been made to the way in which statutory declarations may be signed and witnessed using electronic means per force of the Coronavirus Economic Response Package (Modifications – Statutory Declarations and Notices of Intention to Marry) Determination 2021 (Cth). That Determination commenced on 21 December 2021 but still requires a person before whom a statutory declaration is made to provide certain identifying information about themselves including contact numbers and a statement to the effect that the statutory declaration was made in accordance with the Determination (s 3).
Statutory declarations made in New South Wales may also be made under the provisions of the Oaths Act 1900 (NSW). Under this Act there are two different prescribed forms (Eighth Schedule and Ninth Schedule) which may be used to complete a valid statutory declaration. The differences between the two forms are not relevant as each contains the same provisions related to the declaration and witnessing of the declaration. They are in the following form:
“Declared at ……………………… on …………………………………...
[place]   [date]
I, …………………………………….a .....................................................
[name of authorised witness] [qualification of authorised witness]
certify the following matters concerning the making of this statutory declaration by the person who made it: [* please cross out any text that does not apply]
1.*I saw the face of the person OR *I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification1 for not removing the covering, and
2.*I have known the person for at least 12 months OR *I have confirmed the person’s identity using an identification document and the document I relied on was …………...………………………………….
[describe the identification documents relied on]
…….……………………………….     ………………………………….
[signature of authorised witness]   [date]”
The witnessing of a Statutory Declaration is not a matter to be enter into lightly. Because such documents are either required to be provided in certain circumstances and because they are accorded weight as legal documents (with penalties attached for provision of false information) it is incumbent upon those authorised to witness the signing of such documents to ensure that they are in the proper prescribed form and contain all the details required by statute.
This is especially the case with solicitors and members of the legal profession who are expected to have the legal knowledge and sense of professional responsibility vis-à-vis the law which might not be apparent with other authorised witnesses (such as chiropractors, midwives or optometrists) who are also listed in the Regulations.
The Applicant has failed on numerous occasions to ensure that Statutory Declarations were completed properly.
However, before making further comment it is necessary to be reminded of the discussion (above) of the Applicant’s prior dealings with the Law Society of NSW.
One of the critical issues which led to a finding of Professional Misconduct against the Applicant by the Legal Services Division of the Administrative Decisions Tribunal of NSW (ADT) related to the false signing of an affidavit.[38] That Tribunal found that the affidavit in question was not taken and received in accordance with the provisions of the Evidence Act 1995 (NSW). In a subsequent affidavit submitted to that Tribunal dated 31 March 2008, the Applicant wrote:
“46. I now understand that the witnessing of a document, and particularly a document such as an affidavit, involves a representation by the witness as to the correctness of the signing and, in the circumstances of the matter, the representation is properly to be regarded as a false representation.
47. I very much regret my action which will not occur again.”[39]
[38] T-documents at 318; Further Supplementary T-documents at 4057.
[39] Ibid at 4126.
The Tribunal also notes that in correspondence with the Law Society in these proceedings the Applicant was asked by the Law Society to provide answers to certain questions by way of a statutory declaration. In response, the Applicant wrote:
“I note your request that the above answers be provided by way of statutory declaration. However I do not consider this to be appropriate, considering that this matter took place three years ago, and I have to rely on my memory and recollection in order to answer all your questions.”[40]
[40] Ibid at 4248.
The second Law Society matter coming before the NSW Tribunal again touched on the same matter in that the Applicant was reprimanded for failing to disclose the details of the October 2008 proceedings and decisions in her application for renewal of her practicing certificate.[41]
[41] Ibid at 311; Council of the Law Society of NSW v Tran [2010] NSWADT 127.
In other words, the Applicant had been subject to professional disciplinary matters by the Law Society as a result of submitting an affidavit which was not properly made and witnessed, had been disciplined and fined as a result, had admitted her error, had given an undertaking not to repeat such behaviour and had subsequently failed to reveal such details in other legal documents (her applications for renewal of her practice certificate).
The Tribunal would be entitled to believe that the Applicant had learned her lesson about the importance of legal documents being in proper form, properly taken and properly witnessed. Two sets of proceedings by the Law Society, two sets of hearings before the ADT, two fines and two reprimands ought to have been sufficient.
This is apparently not the case.
MARA put before the Tribunal a number of documents which had been provided by the Applicant, including some provided under the section 308 notice relating to 10 identified client files.
It is worth repeating that a witness to such Statutory Declarations must state their name, qualification and address. They are not obliged to enter a date, although the declarant must.
Form 888 is a form headed “Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application”. Throughout the Tribunal documents the version of Form 888 most frequently used is one which does not actually list migration agents as authorised witnesses.[42]
[42] T-documents at 120. The Tribunal is referring to version 10/18.
Contained in the material filed by the Applicant are following documents:
(a)A form 888 relating to Ngoc Thuy Pham which the Applicant has signed but not dated. In this instance the Applicant has indicated her qualification as a witness to be “solicitor”.[43] Her address and qualification are shown.
[43] T-documents at 362.
(b)A form 888 relating to An Phuoc Nguyen which is signed and dated by her and signed, with address and qualification but not dated by the Applicant as witness[44]
[44] Ibid at 252.
(c)A form 956 (Advice by a migration agent/exempt person of providing immigration assistance) related to Thien Khiem Pham which is signed by both the client and the Applicant (as a migration agent) but with no date given in relation to either signature.[45] The witness address is contained elsewhere on this form.
(d)A form 956 related to Ngoc Thuy Pham which again has the signature of both client and Applicant but no dates.[46] The witness address is contained elsewhere on this form.
(e)A form 956 related to Thi Trang Tuyet Tram Bui which again has the signature of both client and Applicant but no dates.[47] The witness address is contained elsewhere on this form.
(f)A form 956 related to Tan Trung Nghia Doan which again has the signature of both client and Applicant but no dates.[48] The witness address is contained elsewhere on this form.
(g)A form 956 related to Quoc Toan Truong which again has the signature of both client and Applicant but no dates.[49] The witness address is contained elsewhere on this form.
(h)A Statutory Declaration (by Hang Thai Thi Nguyen) made on the prescribed form which contains a rubber stamp in the name of the Applicant where the witnesses name and qualification is required to appear but is not signed by her as required.[50]
(i)A document headed “Statutory Declaration” (by Thi Hung Pham) which is not in the prescribed form and has a declaration that it was witnessed by “My Yen Tran/Michelle Nguyen a Legal Practitioner” without any indication as to which of these two persons is the signatory,[51] nor is there the required address.
(j)A document headed “Statutory Declaration” (by Thanh Tin Nguyen) which is not in the prescribed form and which while dated contains a witness signature but no indication of the name or address of the signatory.[52]
(k)A document headed “Statutory Declaration” (by Thi Kim Phuong Nguyen) which is not in the prescribed form and which while dated and contains a witness signature, does not indicate of the name or address of the signatory.[53]
(l)Statutory declarations made by Phillip Chau and Thuy Mai Han Pham in relation to a sponsorship matter are signed and dated by the Applicant as a witness but fails to provide an address as required.[54]
[45] Ibid at 366.
[46] Ibid at 368.
[47] Further Supplementary T-documents at 1354.
[48] Ibid at 1358.
[49] Ibid at 3809.
[50] Ibid at 4026.
[51] Ibid at 1138.
[52] Ibid at 1751.
[53] Ibid at 1753.
[54] Ibid at 3923 and 3925.

When pressed on these matters by MARA’s representative the Applicant offered no more of an explanation other than:
“…I must have overlooked and undated it.
…Look, it’s the same thing. We have a big case load in our office. Our practice is busy. We lodge a lot of this type of application. So it’s very common that these things aren’t dated.[55]
…
MR AVIRAM: But I just want to put to you that that is a very serious breach of - - -?---Not dating the document?
Yes. And especially when it’s done repeatedly and in statutory declarations. I just have to put that to you. Do you not accept that that’s a very serious breach?---I still don’t.”[56]
[55] Transcript of hearing dated 4 July 2022 at 66.
[56] Ibid at 69.
This is simply not good enough.
Leaving aside, for the sake of argument, the issue of the exact form of statutory declarations, the whole purpose of having documents properly completed including details such as relevant dates is to allow the immigration or citizenship authorities to verify them. Every migration agent is aware of the need for forms to be completed fully and accurately. Every solicitor is aware of their legal duties to witness documents properly.
The failure of the Applicant in this regard is a serious indictment of her obviously cavalier approach to the discharge of her responsibilities and potentially reflects on the question of her status as a fit and proper person.
ALLEGED NEGLIGENT MANAGEMENT OF CLIENTS’ AFFAIRS
Returning to the gravamen of MARA’s findings against the Applicant and the rationale for the cancellation of her registration, the Tribunal starts with the basic responsibilities of agents as outlined in the Code.
Clause 2.1 of the Code provides:
A registered migration agent must always:
(a) act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently and fairly.
This overarching provision of the Code requires that a migration agent always act in the best interests of their clients; that they supply information to the Department on their behalf which is comprehensive and accurate and that they deal with their clients in a way which comports with the various other provisions of the Code and establishes a proper financial relationship between agent and client.
Related relevant clauses of the Code include:
2.8 A registered migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b) act in accordance with the client’s instructions; and
(c) keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
2.17 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) a registered migration agent
(a) must not encourage the client to lodge the application
….
3.2A Once a registered migration agent has agreed to work for a client, but before commencing that work, the agent must:
(a) provide the client with a copy of the consumer guide; and
(b) make a record that the copy has been provided.
5.2 A registered migration agent must:
(a) before starting work for a client, give the client:
(i) an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and
(ii) an estimate of the time likely to be taken in performing the services; and
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:
(i) the estimate of fees; and
(ii) the estimate of the time likely to be taken in performing the services; and
(c) give the client written confirmation (an Agreement for Services and Fees) of:
(i) the services to be performed; and
(ii) the fees for the services; and
(iii) the disbursements that the agent is likely to incur as part of the services; and
(d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.
6.1 A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a) a copy of each client’s application; and
(b) copies of each written communication between:
(i) the client and the agent; and
(ii) the agent and any relevant statutory authority; and
(iii) the agent and the Department regarding the client; and
(c) file notes of every substantive or material oral communication between:
(i) the client and the agent; and
(ii) the agent and an official of any relevant statutory authority; and
(iii) the agent and the Department regarding the client.
Provision of information and recording of instructions
In a generic sense MARA contends that none of the Applicant’s clients was provided with a copy of the Consumer Guide as required (cl 3.2A of the Code) nor were proper and complete records kept of the communications between the clients and the Applicant, including a copy of the clients’ instructions to the Applicant (cl 2.8(a), 2.8(b), 5.2(b) and 6.2(b)).
Subclause 2.8(a) is quite clear – an agent must confirm the client’s instructions in writing to the client. The Respondent wrote to MARA on 12 June 2019 stating:
“It is not my practice to maintain a separate written confirmation that I have taken instructions from my clients and that I have understood their instructions.”[57]
[57] T-documents at 109.
In the hearing the Applicant made her position clear:
“SENIOR MEMBER: Sorry; where, if anywhere, do you keep a note of clients’ instructions?---We don’t.
You don’t?---Yes.”[58]
[58] Transcript of hearing 4 July 2022 page 37.
It may not have been the Applicant’s practice, but it was her statutory duty and a legal requirement.
In the final event, it is clear that the Applicant does not contest MARA’s assertions in this regard – a copy of the Consumer Guide was not provided to each client and there was a failure to record and then confirm each “client’s instructions in writing to the client.”
The Tribunal regards this as a serious breach on the part of the Applicant. It is central to the maintenance of the integrity of the scheme that clients/consumers are informed fully of their rights and of the responsibilities and liabilities of their agents.
In the absence of a proper record of the instructions given by clients to their agents, those clients are potentially denied access to redress where disputes arise in establishing whether or not those instructions were followed. In Narayanan this specific failure was given some weight by the Tribunal in determining that the former agent’s registration should be barred.[59]
[59] Narayanan and Migration Agents’ Registration Authority [2006] AATA 353 at [44]. This decision refers to a case with similar facts but pertains to a different power to bar a former agent from registration under s 311A of the Act.
The Tribunal finds that the applicant has breached the requirements of subclauses 3.2(a) and 2.8(a) of the code.
Financial arrangements
Tax invoices/Estimate of charges
Paragraph 5.2(a)(i) of the Code requires a migration agent to give a prospective client (“before starting work for a client”) “an estimate of charges” of what their services are likely to cost by way of fees and disbursements, together with an estimate of the time likely to be taken in performing the services. This is referred to as an “Agreement for Services and Fees” (cl 5.2(c)). The agent may not charge a client for their services unless the services for which they are making the charge are consistent with the prior advice about costs provided in the Agreement for Services and Fees (cl 5.5(a)).
Importantly, clause 5.5 of the Code reflects a direct statutory requirement set out in section 313 of the Act itself which also provides that a client (“assisted person”)
[m]ay recover the amount of payment as a debt due to him or her if he or she
…
did not receive a statement of services before making the payment.[60]
[60] Act s 313(3)(b).
The Code refers to the written agreement between an agent and their client as an “Agreement for Services and Fees”. There is no prescriptive definition of what exactly this document should look like or contain. What is certain is that there needs to be some sort of document which fulfils the role of establishing clearly the services to be provided and the fees to be charged.
MARA has published a series of Practice Guides for registered migration agents and relevantly there was a guide entitled “Is your client agreement clear?”[61] It stated:
“Registered Migration Agents (RMAs) will no doubt be aware of their obligation under the Code of Conduct for registered migration agents to enter into an Agreement for Services and Fees with their clients once they have confirmed their instructions in writing. This agreement will underpin their relationship with a client and serves to protect both parties. The agreement sets out the services to be performed along with the associated fees and disbursements to be paid. The importance of getting the terms of this agreement right cannot be overstated.”[62]
[61] Since the new Code of March 2022 this was replaced by a guide: “Is your service agreement clear?” which is considerably more prescriptive.
[62] Office of Migration Agents Registration Authority, Practice Guide for registered migration agents.
The Applicant conducts her business on the basis that:
“I rendered an estimated costs agreement for my services and any departmental fees to the client after consultation to take away.”[63]
[63] Applicant’s Statutory Declaration dated 28 April 2020 at 1.
The Applicant renders to her clients what she describes as “Tax Invoices” at the completion of her services on their behalf.
In the Submission made by the Applicant’s representative on 28 April 2020, it states:
“To reiterate, the Applicant contends that the cost agreement she provided her clients incorporated the critical elements of clause 5.2, namely there was an estimate, and acceptance of the estimate and an agreement for the applicant to carry out the agreed work.
In addition, the Applicant further submits that her invoices issued after completing the service meet the criteria for a “Statement of Service” as set out in clause 5.5 of the Code. The invoices set out the particulars of the service performed and the charge made in respect of the service. Therefore the invoices met the critical elements of clause 5.5 of the Code.
The nomenclature of the documents is not prescribed. It does not matter that the “Agreement for Services and Fees” is called a “Cost Agreement”. The point is that the contents of the documents not the name of the documents satisfies the criteria in clauses 5.2 and 5.5 of the Code.
I note there is nothing in clauses 5.2 or 5.5 that requires an Agent to keep a copy of the service agreement or statement of service. The requirements in the clauses 5.2 and 5.5 are merely to give the client a service agreement and statement of service.
As a question of fact, the Applicant at all stages provided a cost agreement and invoice to her clients. The ten files ALL have tax invoices. Therefore the Applicant has not breached clauses 5.2 and 5.5.”
The Applicant, rightly, points out numerous examples of her tax invoices/cost agreements contained in each of the client files before the Tribunal, as well as with other examples.[64]
[64] T-documents at 345, 1159, 1413, 1503, 1689, 1805, 1860, 2524, 2826, 2870, 3174, 3338, 3412, 3443 and 3752.
A typical example of the document to which this submission makes reference is as follows and is printed on letterhead which appears as:
LOGO             MY. T. NGUYEN  SOLICITORS
Michelle My Nguyen  My Yen Thi Tran
Solicitor  Solicitor - Migration Agent No [XXXXX X]
And which contains as a footer details of the physical and postal address of the company, telephone and fax numbers, an ABN and the words “Liability limited by a scheme approved under Professional Standards Legislation”
TAX INVOICE
Our Ref : ABC
Date: XX.XX.XXXX
Client’s Name: ABC

SERVICE

For taking instructions and management of you[65] immigration case in respect to:

*Advice and assistance with (here inserted visa application or MRT application details)

$

Disbursements

Police clearance certificate from Australia

$ (always blank)

Courier of application for lodgement

$ (always blank)

Office photocopies

$ (always $250.00)

Postage, telephone, fax & sundries

$ (always $250.00)

Application fees as applicable at time of application

$

Toral Costs

$

GST

$

Total costs of services and disbursements including GST

$

[65] Sic.
Total received from you $
Balance $ NIL
MyYen Tran

None of the invoices show any charge for the first two items (Police certificates and courier charges) and all of them show a balance of NIL. All of them show exactly the same charges for “office photocopies” at $250.00 and “postage, telephone, fax & sundries” at $250.00. It seems problematic that there have been no costs involved in the first two of these items and that the costs for the latter two should be the same in all instances regardless of the complexity of the individual cases involved, although the Applicant told the Tribunal that “I charge a fixed rate for my services”[66] and that some charges such as AFP checks are paid directly by her clients “they were by money orders or they would pay using their credit cards”.[67]
[66] Transcript of hearing dated 4 July 2022 at 23.
[67] Transcript of hearing dated 5 July 2022 at 105.
It is perhaps slightly unusual that clients are only charged at the conclusion of matters and that there are no up-front or progressive payments made. However, there is nothing in either the Act or the Code which prohibits such an arrangement. Indeed, in Raygan, the Tribunal accepted that this practice was acceptable, although with qualifications:
The statement of services may take the form of an invoice or account, but it must include itemisation consistent with the Agreement for Services and Fees; namely it must include details of the services performed, the fees for those services and the disbursements.[68]
[68] Raygan and Migration Agents Registration Authority [2020] AATA 1164 at [29].
These tax invoices are of course retrospective in that they relate to costs incurred and charges made. However, paragraph 5.2(a)(i) of the Code is prospective in character. It requires advice of fees and disbursements the agent “is likely to incur”, not just what has been incurred. There is nothing on file which indicates anything prospectively, there is only the statement of the Applicant that she gave each of her clients something to take away and, if/when they returned to consult here again they were taken to have accepted the advice given – but again, none of that is on any file.
The Applicant gave a fuller explanation of her approach to these matters in the hearing:
“SENIOR MEMBER: But you tell them that they’re going to be charged at a fixed rate?
WITNESS: Yes.
SENIOR MEMBER: In writing?
WITNESS: In this - this costs agreement, Senior Member, usually when they come in to see me. And if I think I can handle the case of them I give them my costing written on here, they take it away, and if they are happy with the costs agreement they come back.
MR AVIRAM (MARA’s representative): And if you’re saying that you give this costs agreement to your clients, why don’t you have a copy of the costs agreement?
WITNESS: Because I believe there’s no requirement that I have to keep a copy of this on my file in the code of conduct. Some clients would sign, and some of them will return it to me and I’ll keep it on the file, some will just take it away and don’t return it to me. But because I charge them at a fixed rate, so I know how to bill them, and that is in the form of a tax invoice that is issued and in the documents I was provided they all had tax invoices in it.
MR AVIRAM: If you don’t keep it on the client’s file why should the tribunal be satisfied that you provide this document to each client?
WITNESS: Because I ran the tax invoice at the end of my work, at the completion of my work, and if I hadn’t given to them this costs agreement 45 they wouldn’t have paid me.”[69]
[69] Transcript of hearing dated 4 July 2022 at 23.
When asked further if a copy of all such agreements was kept centrally, the Applicant replied:
“Electronically sometimes we have that in our electronic system. But hard copies we don’t have it in every file.”[70]
[70] Ibid at 25.
Further in the Tribunal hearing, Mr Duri, on behalf of the Applicant conceded:
“We do concede that there are not cost estimates in every single file… we concede that they’re not on every of the 10 files, the estimate part. So there’s two elements; this is a fee estimated service agreement, and the statement of service at the end.”[71]
[71] Ibid at 21.
However a simple statement of costs is not all that is required by clause 5.2. Paragraph 5.2(a)(ii) of the Code also requires provision of (emphasis added):
“[a]n estimate of the time likely to be taken in performing the services”.
There is nothing in any of the records submitted which appears to comport with this requirement. Certainly there appears to be nothing on file, which is not surprising given the Applicant’s assertion that they are not obliged to keep a copy of any such agreements or statements.
The absence of both a clear statement of prospective costs and of prospective time estimates means that fees charged cannot be matched against any “Agreement” (however defined) in accordance with the requirements of subclause 5.5(a) of the Code which requires:
5.5 A registered migration agent must be aware of the effect of section 313 of the Act, an act on the basis that
(a) the agent is not entitled to be paid a fee or other reward for giving migration assistance to a client unless the agent gives the client a statement that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2;
Because the ability to “match” lies at the heart of part 5, the failure to keep records, even if that is not mandated explicitly, so as to allow such matching to take place, nevertheless implicitly imposes on the Applicant the requirement to keep such records. It is expected that such records would be kept and be available to the parties. The system of post-event invoices and the absence of information about prospective time advice is inadequate.
The Tribunal finds that the Applicant has breached the requirements of clauses 5.2 and 5.5 of the Code.
Client accounts
In its initial cancellation decision MARA found that the Applicant had breached clauses 7.2 and 7.4 of the Code as they relate to the keeping of “client accounts”.[72]
[72] T-documents at 53-54; Reviewable decision at [108]-[109].
In MARA’s final written submission (at [7]) dated 11 July 2022 it resiled from this finding on the basis that:
“The Respondent accepts that where a migration agent does not take fees or other monies from clients in advance of work and services, then the migration agent is not required to have a client account. In these circumstances, the Respondent no longer contends that the Applicant has breached clauses 7.1 and 7.4.”
The Tribunal accepts this withdrawal by MARA, although it makes no mention of its position regarding any breach of clause 7.2. Of course, as a matter of logic if 7.1 is not breached, then neither is 7.2.
The Tribunal is nevertheless concerned that the Code at 7.1 also requires that there must be a “client’s account” into which payments are made by the client for fees and disbursements and that such “client’s accounts” are to be separate from the agent’s “operating account”.

The Applicant’s evidence was to the effect that her practice maintains only one account for the whole practice, which is both a legal practice and a practice offering migration advice. She is also not the sole practitioner whose fees are paid into that account. The practice does not maintain a Trust Fund. Into that single account are paid not only the fees and disbursements paid by migration clients abut also income earned by the firm in its other (limited) operations such as conveyancing and family law work.[73]
[73] Transcript of hearing dated 4 July 2022 at 24 and 39; Transcript of hearing 5 dated July 2022 at 102.
However clause 7.1 of the Code clearly requires that each client have a separate account and that that account be separate from the operating account of the agent. That separate client account is the account into which “money paid by clients to the agent for fees and disbursements” must be deposited. It does not matter whether these fees or disbursements are paid in advance, in instalments or simply on completion of the services rendered. Whenever they are paid they must be paid into a specific client’s account. However disbursements are made by the Applicant in advance (postage, telephone accounts, filing fees etc) and it would be though that there was a requirement that they be recorded in an account separate to the operational account of the practice.
The Applicant’s submission and statutory declaration of 28 April 2020 do not address the issues raised by part 7 of the Code.
Only because MARA has specifically resiled from any submission on clause 7.1, the Tribunal, despite its concerns, will not seek to take the matter further or make any definitive findings in this regard.
The completeness and integrity of files and applications
MARA makes a number of claims against the Applicant along the lines of:
(a)failing to submit application documents which are complete or contain sufficient details about her clients;
(b)encouraging vexatious applications which have no realistic prospect of success;
(c)misrepresenting the views of clients by using “templates” of answers to questions; and
(d)being less than forthcoming in her responses to requests by MARA for the provision of documents.
Incomplete/insufficiently filled out forms
There were number of documents submitted to MARA which are not complete in every detail. In addition to those previously discussed under the heading “Statutory Declarations” (infra) the Tribunal notes:
·the prospective marriage application of Thi Hung Pham dated 1 March 2015 contains several documents which have been signed by the Respondent as a witness but not dated;[74]
·a form 80 (Personal particulars) relating to the character assessment of Quoc Toan Truong in which the personal details of a partner are not provided, despite the partner being in Australia.[75]
[74] T-documents at 1126 and 1132.
[75] T-documents at 3823.
MARA drew attention to other documents where birth dates for numerous clients or relevant persons were given as “1 January” in a particular year.[76] It was MARA’s contention that this lack of detail showed some negligence or failing on the part of the Respondent.
[76] Transcript dated 4 July 2022 at 43; T-documents at 342.
The Tribunal does not accept this prima facie in relation to birth date recording. It is common in the Tribunal to be faced with documents where birth dates are unknown or not properly recorded, especially among cultural or ethnic communities where the marking of a birthday is not a particular or notable event. In such circumstances the use of dates such as 1 January or 31 December is not uncommon. The Tribunal places little weight on this matter in relation to such details. Moreover it does not appear that the lack of such details have prevented the further assessment of the claims in question by the relevant authorities.
Vexatious applications
Clause 2.17 provides that migration agents must not encourage clients to lodge application which clearly have no prospect of success. MARA cites the case of An Hoai Nguyen’s application which was for a prospective marriage visa. MARA claims that documents submitted by the Applicant with this application indicated that the alleged partners had known each other for a period of only 10 days.[77] This led to the issuance (by the Department) of a procedural fairness letter to Mr Nguyen seeking clarification of the details of his relationship with his prospective partner, to which there was no reply. In response, the Applicant submitted that:
“It is absurd to say at the time of the application, the visa application was vexatious or without merit. The fact that the relationship subsequently ended or the applicant abandoned the application at a much later date does not mean that the application itself was vexatious.”[78]
[77] MARA’s SFIC at [51]; Supplementary T-documents at 4001.
[78] Applicant’s Submission dated 28 April 2020.
At the hearing the Applicant was asked:
“Mr AVIRAM: Do you think that an application for a visa on the basis of de facto partner based on 10 days of people knowing each other, has reasonable prospects of success?---With a partner visa application, for an application to be a valid application you have to put an application, a fee and a relationship certificate because this is a de facto relationship. The couple had all of those elements. They also produced to me evidence of their relationship, such as photos, 45 correspondences of the time they were apart and when they were together. They had bank statements. Therefore, my instructions were to lodge it because their relationship was genuine and I acted on their instructions and I lodged it because their relationship was genuine and I acted on their instructions and I lodged it. It was not a vexatious application.[79]
…
I just want to put to you that an application for a visa where the issue is whether the applicant is in a de facto relationship with the sponsor where they have been together for 10 days and where with the application there is lodged untranslated Vietnamese text messages, is either a vexatious application or is grossly unfounded?---I disagree.
What do you say to that?---I disagree because they were together for four months, like you said earlier, and they had a relationship certificate from the government to say they were in a de facto relationship.
A relationship certificate from the government?---Yes, it’s called a relationship certificate issued by the Registry of Births, Deaths and Marriages. So in de facto cases where they cannot establish living together for 12 months, they can seek and apply for a relationship certificate and that satisfies the requirement.
Even if there was such a certificate, do you think that an application for a de facto on the basis of spending 10 days together has any reasonable prospects of success?---They were together for four months and it’s a valid application. If they had the certificate they are entitled to lodge an application.
Did you tell the clients anything about the prospects?---Of course. Of course.
What did you tell them?---Of course they have instructed me to proceed, hence an application was lodged.
But they’re relying on your expertise as a migration agent?---Yes. On my experience some clients meet, they fall in love immediately, love at first sight. They lodge an application that still gets approved. Ultimately it’s up to the decision-maker that assesses this case.”[80]
[79] Transcript of hearing dated 5 July 2022 at 87-88.
[80] Ibid at 88-89.
In terms of her advice to clients, the Respondent in her evidence indicated that she turned away some 10% of applicants because she did not believe their cases had any prospect of success.[81]
[81] Ibid at 114.
In the Tribunal MARA has advanced only one case which it claims to be vexatious, and on the face of it the claim in question was obviously one with little prospect of success. MARA does so on the basis that the de facto relationship in question had been on foot for only a matter of days. Regulation 2.03A(3) made under the Migration Regulations 1994 (Cth) specifies that such a relationship, in order to qualify for consideration for a partner visa needs to have been established “for at least [a] period of 12 months”. However, in its final submission, the Applicant contends that subregulation 2.03A(5) sets this requirement aside if the relationship is one “that is registered under a law of a State or Territory” as prescribed in certain regulations[82] and hence the Relationship Certificate mentioned obviates the 12 month requirement. It states:
Provided there is a Relationship Certificate, there is absolutely no requirement for a couple to have known each other for a particular period of time before committing to a de facto relationship.[83]
[82] Acts Interpretation (Registered Relationships) Regulations 2008 (Cth).
[83] Applicant’s Response to Respondent’s Closing Submission at 8.
Unfortunately for the Applicant, the only Acts which are prescribed under that Regulation are those of Victoria, Tasmania and the Australian Capital Territory.[84] The esoteric (albeit fascinating) reference is of no assistance to the Applicant.
[84] Acts Interpretation (Registered Relationships) Regulations 2008 reg 3.
The Tribunal was presented by MARA with but one such “vexatious” claim and as Aristotle first put it, “one swallow does not make a summer”.[85]
[85] Aristotle, Nicomachean Ethics.
This is altogether too slim a basis upon which to make any finding that there has been a breach of clause 2.17 and no such finding is made.
The use of template answers
MARA draws attention to a number of statutory declarations by supporting witnesses relating to partner visa (subclass 888) applications which are from a variety of witnesses and relate to variety of applicants. It is clear on the face of them that there is a remarkable degree of similarity. MARA asserts that “the statements and documents [in the March 2017 complaint from the Department of Home Affairs] appear to have near identical wording/phrasing.”[86]
[86] MARA SFIC at [30(c)].
On 14 December 2011 Mr Hung Vi Le completed a statutory declaration in support of the partner visa application for Thi Kim Phuong Nguyen in which he states: “The sponsor is my wife’s friend. I knew the applicants when they started their relationship. I see the couple once every two weeks. I see the couple regularly to play soccer.” Further, “The couple have been together for a long time now. They are in love and committed to their relationship. They are very happy as a family. I can confirm the couple have an ongoing relationship that is recognised by friends and family”.[87]
[87] T-documents at 1744.
On 10 November 2013 Mr Le completed another statutory declaration, in this instance for the other partner Thanh Tin Nguyen in which he states: “The sponsor is my wife’s friend. I knew the applicants when they started their relationship. I see the couple once every two weeks.” Further, “The couple have been together for a long time now. They are in love + committed to their relationship. They are very happy as a family. I can confirm the couple have an ongoing relationship that is recognised by friends + family”.[88]
[88] Ibid at 1637.
Although the written documents differ in the nature of the script used, it was the Applicant’s testimony that she had written and filled in the text in question in both forms and had done so as an accurate reflection of what Mr Le had told her.[89] The Applicant also rejected the Tribunal’s suggestion that this was a cut-and-paste exercise replicating in the 2013 statement the wording of that from 2011.[90] Prima facie, it is hard to deny that the near-identical status of the two statements (leaving aside the soccer reference) raises some question about the extent to which the Applicant faithfully represented the exact (or as near as possible) statements of the declarant.
[89] Transcript dated 4 July 2022 at 78.
[90] Transcript dated 5 July 2022 at 85.
The Tribunal notes that such similarities are found throughout the documentation submitted by the Applicant:
·In relation to an application in support of a prospective partner visa for Mr Thi Trang Tuyet Tram Bui, MARA points to supporting statements from a friend and the sponsor’s mother. One says: “I know the couple have support of families and friends”, the other “They have the support of families and friends”. Both say: “I confirm they have a genuine and continuing martial relationship [sic)”.[91]
·In relation to a similar application by Suong Phuong Trong Phan, one referee writes: “I am the family friend of the visa applicant for many years. I met the visa sponsor since they began dating. I see the couple very often for family and friends gatherings”, while the other writes: “I am the friend of the sponsor’s mother and also housemate at her address. I met the visa applicant since they dated. I see the couple very often as we live in the same house.”[92]
·In relation to two statutory declarations regarding a partner visa matter, one party writes: “My wife and I have a joint bank account and we are currently saving our money together for daily spending. We share household expenses and make our financial decisions together. My wife and I have joint responsibility regarding household duties. We help each other with the housework. We also do our grocery shopping together when we can.” The other party writes: “My partner and I have a joint bank account. We are currently saving for our future goals. We share daily household expenses and financial decisions together. My partner and I have joint responsibility regarding household duties. We help each other whenever we can. We also do our groceries shopping together.”[93]
[91] T-documents at 245 and 248.
[92] Ibid at 251 and 254.
[93] Ibid at 261 and 269.
The matter of the use of “templates” was explored at length in the Tribunal hearing where the following exchange was recorded:
“MR AVIRAM… So whether - so the respondent’s submission here is that, essentially, you do use templates, and that you put in the same generic responses into these forms across different visa applicants?---My answer to that is that the witnesses all come to my office. I get instructions, and I can help them to complete this. I don’t have to help them to complete the form 888. I can just merely witness their signature. However, I’ve extended the service of helping them to complete this form 888 because I’m acting for my client and I’ve extended this service to the witnesses.
But you’ve got a duty to act in the interests of your client?---And I did act in their best interests. And again, there have been no complaints.”[94]
[94] Transcript of hearing dated 4 July 2022 at 75.
The Tribunal repeats the point which it made at the hearing, namely that even if “templates” are used, that does not in any sense either imply or demonstrate that the statements contained therein are untrue.
It is a matter of common sense to conclude that the Applicant gave encouragement to her clients, given that most were Vietnamese speaking and in need of her linguistic assistance, in the way in which they filled out various forms. It does not matter whether or not she encouraged them to give certain details or suggested answers, the only issue of relevance is whether those statements were truthful.
There is no conclusion to be drawn from MARA’s specific complaint that the Applicant was not acting in the best interests of her clients as it pertained to using template answers.
Insufficiently forthcoming with documentation in response to MARA’s requests
MARA also asserts that the Applicant failed to provide it with full and complete documentation in response to its section 308 and 309 orders. What MARA alleges is that in her replies the Applicant failed to engage with its claims about the use of templates and in some instances provided copies of documents which contained whited-out details on some of the forms.[95] The Tribunal has already dealt with the first of these issues, moreover in her reply (14 February 2018) the Applicant did deal with the matter stating that, “[n]o templates are provided because each case is different.”[96] As to the latter, at no stage in the proceedings was its attention drawn by MARA to any whited-out documents, and although the Tribunal has considered the original MARA cancellation decision which references such documents,[97] the fact that they were not put before the hearing leads the Tribunal to form no established view upon them and their relevance.
[95] MARA SFIC at [66].
[96] T-documents at 279.
[97] T-documents at 57-58; Reviewable decision at [127].
What is in issue however are, more significantly, the various statutory declarations which have not been properly dated and hence can be called into question as to the exact details of their provenance.
Further, clause 6.4 of the Code makes it clear that records which must be held by the migration agent (and provided to MARA if requested) include “electronic communications”. This includes screenshots of text messages and it is clear that when making her initial response to MARA’s s 308 requests (14 February 2018) these were not included,[98] although a very limited and incomplete selection of some of them appear in the later response of 12 June 2019.[99]
[98] Ibid at 276-310.
[99] Ibid at 107-129.
By way of illustration of the Applicant’s alleged failings in terms of incomplete or misleading representations, MARA draws attention to the way in which the Applicant handled two particular matters.
Ngoc Thuy Pham
The first relates to the prospective marriage visa application of Ms Ngoc Thuy Pham. The matter centrally at issue was whether Ms Pham was in a genuine relationship with her sponsor/prospective marriage partner Mr Thien Khiem Pham. The Minister’s delegate originally rejected the application which then came before the Migration and Refugee Division of this Tribunal. In remitting the matter to the Department for reconsideration the Tribunal was highly critical of the role of the couple’s migration agent, the current Applicant. The Tribunal stated:
35. A number of issues were identified in the Department's decision which raised a concern as to whether the parties were in a genuine relationship. In particular, the relationship the review applicant has with his wife called into question the genuineness of his relationship with the visa applicant.
36. In the application filed by the visa applicant, it was stated that the review applicant's youngest child, Linda, was born in 2008. This was after the review applicant claims to have separated and divorced his first wife. This information was incorrect. The review applicant's daughter, Linda, was born on 9 July 1998.
37. The error appears to have been caused by the applicant's agent, My T Nguyen Solicitors. The Tribunal notes that it appears when the agent has completed the form they have shown little or no concern for or interest in providing the required details. The dates of birth of all relatives of the visa applicants and the review applicant had originally been stated as being born on 1 Han [sic?]. This was then whited out with no correct information then provide[d]. Other dates provided, such as dates of marriage and divorce are also not given in detail. The fact that this information is not provided makes it difficult when assessment [sic?] the validity of any application to confirm the information or make any further investigation.
38. The visa applicant is required to sign a declaration that states that "the information I have supplied in this application is complete, correct and up-to-date in every detail'. The Tribunal does not accept that the applicant's agent could not have obtained the full relevant dates of birth and other information when preparing his form for signing by their client. The application should not have been filed until the applicant had advised the agent of this information and the details were able to be provided in the form. The Tribunal does not comment on whether the failure by the visa applicant's agent to obtain the correct information was a deliberate action so that further investigations would be frustrated or was simply a negligent and unprofessional attitude towards the preparation of this application. In preparing the form in this matter the applicant's agent has certainly done a disservice to their client as well as failing to comply with the requirement of the form to provide complete, correct and up-to date information.[100]
[100] T-documents at 337-344.

The concept of fitness and propriety to do certain work or to hold certain offices has been common for centuries. This is illustrated by the quotation from Coke[148] in the frequently cited passage from the High Court in Hughes and Vale, in these terms:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgement and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty, knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"- Coke.[149]
[148] Sir Edward Coke, Chief Justice of Common Pleas (1606-1613) and King’s Bench (1613-1616).
[149] Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors (No. 2) [1955] HCA 28; (1955) 93 CLR 127 at 156.
The concept is also context specific. Again, as the High Court stated:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[150]
[150] Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 94 ALR 11 at [56] per Toohey and Gaudron JJ.
Similarly, in Maritime Union the Full Federal Court said that the:
phrase a ‘fit and proper person’ is used in many different statutory contexts... But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed.”[151]
[151] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [17].
In specific reference to the role of a migration agent, Kiefel J (as Her Honour then was) explained:
The topic with which s 303(1)(f) is concerned is not … one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The inquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit assessment of an agent’s integrity and fitness to what has been conveyed by any other breaches. There is no reason why the Tribunal’s review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in section 290(2) is not exhaustive. There is good reason why the Tribunal should be in a position to consider the most recent material bearing upon the question of an agent's integrity and their fitness to continue to provide immigration assistance. By this means facts such as an agent's subsequent conviction for a serious offence could be taken into account. The relevance of such a factor, to the question of an agent's integrity and fitness, is confirmed by its specification in s 290(2), as a matter which must be taken into account by the Authority in connection with their registration. [152]
[152] Shi v Migration Agents Registration Authority [2008] HCA 31 at [149].
Nevertheless, in Omerdic the Tribunal noted that:
While the content of the expression is coloured by the context in which it is employed, however, this does not mean that broader considerations have no role to play. Hence, it is not inappropriate to have regard to the general integrity of the person concerned or, put another way, the person’s honesty or character. [153]
[153] Omerdic and Registrar of Ministers of Religion Victoria [2022] AATA 1765 at [56].
In Issa Senior Member Taylor opined:
The characterisation of fitness and propriety depends on the person’s character, reputation and the quality of the contentious conduct.[154]
[154] Issa and Migration Agents Registration Authority [2017] AATA 1110 at [453].
In reference to “character” the Full Federal Court stated:
Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.[155]
[155] Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at [142].
This point emerges in the Tribunal’s decision in Peng where Deputy President McMahon made reference to the fact that:
Mr Peng has demonstrated a lack of integrity in one set of circumstance which illuminates his approach to migration matters.[156]
[156] Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 at [34].
In SRH the Tribunal stated that:
“Fit and proper” encompasses integrity, honesty, diligence and professionalism[157]
[157] SRH and Comptroller-General of Customs (1995) 37 ALD 581 at [28].
The Tribunal can only form judgement on the basis of the material before it and in this respect it is unfortunate that, apart from Mr Le, no evidence was adduced from any of the Applicant’s clients.
This matter was raised in the hearing as follows:
“MR AVIRAM: I just wanted to ask you, you said yesterday that you put, correct me if I’m wrong, I think you said you put in thousands of applications?---That’s correct. Over the almost 20 years of practice.
Is there any reason why you didn’t call any clients to support you in this process?---I didn’t think it was necessary because I thought the evidence was quite clear.
MR DURI[158]: Well, we did call Mr Lee?---We called Mr Lee because he was crucial to this case where MARA - - -
Our case is the rest of it is just ridiculous. It’s just the only – Mr Lee is the 30 only serious issue.
MR AVIRAM: I asked about clients. Is Mr Lee your client?---Mr Lee was a witness of two of my clients, of my former clients.
But you said several times that none of your clients ever complained about you?---That’s correct, yes.
I was just asking why didn’t you call any of your clients to support you in this process?---Like I said earlier, I didn’t think it was necessary.”[159]
[158] The Applicant’s representative.
[159] Transcript of hearing dated 5 July 2022 at 86.
Although no Jones v Dunkel[160] point was taken in this regard, it would have been helpful for the Tribunal to have had some of the discussion and evidence better contextualised so as to assist in a clearer understanding of some of the processes by which the Applicant provided services to her clients. The various statutory declarations from clients which were before the Tribunal were of no particular value in this regard.
[160] Jones v Dunkel [1959] 101 CLR 298.
Giving consideration then simply to the material before the Tribunal in documentary form and at the hearings, the Tribunal is satisfied that:
(a)the Applicant has failed in her duties as both a migration agent and as a solicitor to adhere to requirements of the law as they relate to the witnessing of legal documents and has done so one more than one occasion;
(b)the Applicant has been the subject of two disciplinary proceedings by the Law Society of NSW and in relation to both sets of findings has nevertheless repeated the behaviour which led to the disciplinary action. In the first instance she was found to have acted improperly in relation to the witnessing of a document and this behaviour has been repeated. In the second instance she failed to give accurate details in her application for renewal of her practice certificate and then repeated that same behaviour for a second year;
(c)the Applicant has repeatedly breached several clauses of the Code of Conduct while denying such breaches or else seeking to minimise their gravity. In the Applicant’s submission of 16 March 2020 she asserts, “At best the breaches fall into the most minor category.” In formal submission at the hearings, the Applicant pleads, “From our point of view there’s no breach for the substantive matters”.[161]The failure to adhere to the requirement in the Code to provide clients with a copy of the consumer guide is characterised as “It’s a trivial - it is a breach, but in the scheme of things, it’s not a breach that reflects on her integrity and we maintain that the applicant is a person of integrity and a fit and proper person to give immigration assistance and any breach is minor and warrants caution;”[162]
(d)the Applicant has repeatedly submitted to the Department applications which were significantly incomplete and lacking in detail, for example as outlined in the Tribunal’s decision in relation to Ms Pham;[163]
(e)the Applicant has regularly failed to acknowledge or indicate any degree of insight into her breaches of the Code or to appreciate the centrality of adherence to the Code in relation to her responsibilities as a migration agent.
[161] Transcript of hearing dated 4 July 2022 at 5.
[162] Idem.
[163] T-documents at 343; AAT decision at [37].
MARA also referenced another matter which arose in the course of cross-examination of the Applicant related to the details of the original issue which had come before the Law Society. It will be recalled that in that matter the Applicant had been acting on behalf of her brother in a dispute over custody of his son.
In a letter sent by the Applicant to the Law Society (dated 6 December 2006) she stated:
“In this case I was doing a favour for a family member in a matter where at the time there was no dispute between the two parties, one being my brother and the other being my sister-in-law.”[164]
[164] Supplementary T-documents at 4078.
In evidence to the Tribunal the Applicant said in relation to the facts in this matter:
“Yes, that was shortly after I was admitted, my brother’s ex-wife took his son away, relocated him to another State, and he was in Vietnam at the time. And she filed an application with the Family Court and I was not able to engage a barrister at the time and so I appeared before the Family Court on that occasion, and I witnessed his signature by phone, after confirming that he had signed the document.”[165]
[165] Transcript of hearing dated 5 July 2022 at 103.
The latter description, namely that there was a dispute is in accordance with the evidence available from the transcript of proceedings in the Federal Magistrate’s Court (26 May 2003) in which the Applicant gave evidence.[166]
[166] Further Supplementary T-documents at 4152-4165.
In its closing submission MARA asserts:
“Finally, we say that the tribunal should not regard her as a person of integrity noting that today, in my submission, she gave evidence that her sister-in-law took her brother’s child and, in my submission, she did so to explain the circumstances of her falsely witnessing her brother’s affidavit in order to gain this tribunal’s sympathy but she told the Law Society there was no dispute between the parties. In my submission, she did that in order to minimise the gravity of the circumstances in which the affidavit was falsely sworn or falsely witnessed. We say that only one of these statements can be true and that this demonstrates that she’s not a person of integrity.”[167]
[167] Transcript of hearing dated 5 July 2022 at 126.
Recollection of past events and what was said two decades ago, and the interchangeability of terms like “sister” and “sister-in-law” in Vietnamese (where the term ‘sister’ is widely used for a variety of female relatives), suggest to the Tribunal that this is a submission upon which it should place little or no weight.
Making a decision that a person is not a “fit and proper” person, in any context, including both the social and professional contexts raised in these proceedings constitutes a very serious matter. As noted already, the distinction between professional administrative competence and personal integrity needs to be borne in mind.
On the facts before the Tribunal, it is not satisfied that the Applicant is not a fit and proper person as referenced in paragraph 303(1)(f) of the Act.
CONSEQUENCES OF ADVERSE FINDINGS
A finding that registered migration agent has “not complied with the Code of conduct prescribed under section 314” of the Act enlivens the provisions of subsection 303(1) of the Act.
(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 a suspension is justified, section 304 provides:
(1) If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.
If registration is cancelled, future consequences are serious, particularly in that MARA may bar a former migration agent from being registered pursuant to the provisions of section 311A:
(1) The Migration Agents Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.
Note: Before making such a decision, the Authority must invite the former registered migration agent to make a submission: see section 311D.
(2) The period must not be more than 5 years starting on the day of the Authority's decision.
In Paddock I stated:
The penalty regime under the Act is set out in sections 303 and 311A and comprehends the imposition of a ban for a maximum period of five years. The Court and the Tribunal have noted that the rationale of such sanctions is not in terms of punishment but rather in terms of protection of the public against incompetent or negligent migration agents.[168]
[168] Paddock and Migration Agents Registration Authority (Migration) [2019] AATA 3941 at [61].
In Kraues, the Federal Court stated:
Importantly, the purpose of the disciplinary powers conferred by s 303 is protection of the public and not punishment as such.[169]
[169] Kraues v Office of the Migration Agents Registration Authority and Anor (2018) 158 ALD 493 at [17].
In Rozsy and Migration Agents Registration Authority Senior Member Penglis stated:
It is well established that, although punishment is not an irrelevant consideration, the primary purpose of a power such as that given by s 311A of the Act is to protect the public from wrongdoing.[170]
[170] Rozsy and Migration Agents Registration Authority [2008] AATA 434 at [397].
In Narayanan, Senior Member Penglis also made the important point that
In fixing the appropriate period in which to ban the applicant, one needs to take account of the fact that Parliament has indicated that the maximum period is 5 years. That is obviously reserved for the most severe cases. The most severe cases would inevitably involve an element of fraud, dishonesty or incompetence.[171]
[171] Narayanan and Migration Agents' Registration Authority [2006] AATA 353 at [141].
As noted above, the options open to the Tribunal in relation to sanctions against the Applicant range from caution to suspension to cancellation. The Tribunal canvassed all the options with both parties and specifically raised with the Applicant the possibility of a suspension of their licence pending the attainment of certain improved practice standards.
“SENIOR MEMBER: I mean, it is – and let me say this is purely speculative on my part. I mean, one option might be a suspension until certain records were properly constructed or until a trust fund was setup or, you know, something along those lines.”[172]
[172] Transcript of hearing dated 5 July 2022 at 121.
After discussing all the evidence and submissions, Mr Duri, on behalf of the Applicant put it to the Tribunal that:
“In terms of integrity, that goes to her moral character about – and our position is strong and clear that there’s no evidence whatsoever that her moral character is compromised at all in any of this evidence. As to the – as was said, we’ve conceded a number of the – the paperwork side of things if you like.
They are important in the sense of keeping records. It’s important, good professional practice. And there’s a concession that the applicant has not kept proper records and could have handled the paperwork a lot better. So technically, yes, we agreed as being a failure to comply with the code of conduct.
But in our view, the appropriate remedy is a caution. Certainly not cancellation. Cancellation is using a sledgehammer to open a walnut. This is really – there’s not enough evidence at all to go anywhere near a finding that the person is not – the applicant is not a fit and – has integrity – doesn’t have integrity and is not a fit and proper person.[173]
[173] Ibid at 120.
…
But as far as her integrity, I think suspension is probably a touch harsh, but cancellation is certainly not warranted under any circumstances in our viewpoint.
SENIOR MEMBER: And similarly, a suspension with any conditions, you would resist?
MR DURI: Yes, that’s – I haven’t – yes, I’m reading the applicant’s mind her. I think - -
SENIOR MEMBER: I mean, it is – and let me say this is purely speculative on my part. I mean, one option might be a suspension until certain records were properly constructed or until a trust fund was setup or, you know, something along those lines. I mean, I’m merely trying to anticipate what might be thrown up in Mr Aviram’s submissions, if it were anything less than cancellation.
But your position is that there having been identified breaches of at least some - - -
MR DURI: Two, maybe three - - -
SENIOR MEMBER: - - - of the - - -
MR DURI: Two we definitely concede, yes.
SENIOR MEMBER: Yes. And there’s the stat dec business. And a caution would be the appropriate – yes. Thank you.”[174]
[174] Ibid at 121.
Unfortunately, “paperwork” is largely what it is all about – this is a paper-driven system. The entire scheme is dependent for its integrity on the quality of the paperwork. Visas are granted to applicants who may not be seen in person by decision-makers and those decision-makers are entitled to believe that the “paperwork” which confronts them is true, accurate and up to date. It makes a mockery of the system and of the underlying public policy if that is not the case. In turn the Scheme is predicated upon the premise that migration agents (and solicitors) are licensed as an integral part of maintaining the integrity of the system.
Not unsurprisingly, MARA’s position was
“The respondent considers that this is a serious case and that it does warrant cancellation.”[175]
[175] Idem.
MARA’s representative then put it to the Tribunal that the Applicant had breached clauses 2.1, 2.4, 2.8, 2.9, 2.17, 2.19, 3.2A, 5.2, 5.5, 6.1, 6.4, and 9.3 of the Code. As a result:
“So we say that the applicant’s breaches of the code, given their seriousness and given their persistent nature, having occurred over years, and when Ms Tran was already an experienced solicitor and experienced migration agent and experienced also as a practicing solicitor, that these breaches should in themselves satisfy the tribunal that the applicant’s registration should be cancelled.
However, the respondent also contends that the applicant is not a fit and proper person, having regard to the fact that she has been a solicitor since 2001 and a migration agent since 2002. And so was an experienced professional at the time of the breaches discussed here.
Who was well aware of her obligations under the code by the years 2011 to 2018. Having regard also to the fact that she has been subjected to two disciplinary proceedings by the New South Wales Law Society which ended in two adverse findings against her by the New South Wales Administration Decisions Tribunal.”[176]
[176] Ibid at 124.
CONSIDERATIONS

The findings made by the Tribunal mean that it is then required to determine what sanctions follow.
Considering that “[i]t is well established that the purpose of a power such as that given by s 311A of the Act is not to punish for wrongdoing, but is to protect the public from wrongdoing”[177] and the fact that there is a range of sanctions available means that there is some discretion in the hands of decision-maker. It is imperative that some degree of proportionality must be taken into consideration in deciding what sanctions are imposed.
[177] Narayanan and Migration Agents' Registration Authority [2006] AATA 353 at [141].
The principle of proportionality is described in one authoritative text as:
“[t]he broader principle that benefits and burdens should be distributed with regard to, and commensurate with, a person’s merit or blame.”[178]
[178] Mirko Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Thomson Reuters, 9th ed, 2022) at 194.
In the criminal jurisdiction the High Court has stated, in respect of sentencing principles:
[a] basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.[179]
[179] Hoare v The Queen (1989) 86 ALR 361 at 365. Emphasis in original.
The NSW Court of Criminal Appeal stated:
There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed.[180]
[180] R v Scott [2005] NSWCCA 152 at [15]
Given the findings of the Tribunal it is not surprising that it considers that the mere imposition of a caution would not in any sense reflect the gravity of those findings.[181]
[181] Hudson v Migration Agents Registration Authority [2004] AATA 1007. Where a suspension of 24 months was reduced to a caution.
At the other end of the spectrum, cancellation is described on MARA’s website[182] as “the most severe action” which can be taken against a migration agent and once a registration is cancelled an applicant cannot apply to be registered again for five years.
[182] Migration Agents Registration Authority, To complain about a registered agent: <>
In the passage from Narayanan quoted above at paragraph 141 of that decision, Senior Member Penglis rightly stated that full barring order (for a period of five years), as the most severe penalty implies behaviours that “inevitably involve an element of fraud, dishonesty or incompetence”. By analogy, for an Applicant where a registration cancellation decision is under review, a full cancellation would be considered the most severe penalty.
The Tribunal does not believe that it has been established that the Applicant has acted in a manner that was so fraudulent, dishonest or incompetent as to invite the imposition of the most extreme of sanctions against her. There is no evidence that either the Department of Home Affairs or MARA was deliberately misled and there is no evidence that any of the Applicant’s clients actually suffered loss of disadvantage.
On the other hand, it is true that she has been negligent, indeed grossly so in relation to record keeping, and the adherence to relevant provisions of the Code. Her actions appear to have focussed primarily on attempting to get away with the provision of minimal information to decision-makers in the hope that lack of detail would not inhibit an outcome of success. She has tried to put her clients in the best light and to present them in a way which even they themselves might not recognise entirely. Her failures to keep certain records have potentially deprived her clients of their full rights of potential redress. The Applicant’s attitude to the general provisions of the Code appear to be quite cavalier.
None of this is consistent with the obligations of either a migration agent or a solicitor.
The Tribunal raised the question of a suspension which might have been subject to being lifted (s 304(1)(b)) if certain matters were addressed, such as attention to the “paperwork”. This did not find favour with the Applicant and indeed the Tribunal noted that at no stage did the Applicant really acknowledged that her failure with the “paperwork” was an important issue nor give any indication that she would seek to remediate her practices in this regard.
The Applicant’s continuingly cavalier attitude towards record keeping weighed heavily against her in the Tribunal’s considerations and was the basis upon which it would not be inclined to impose any conditional suspension, which it judges would not thereafter be operationalised.
If the evidence suggests that a caution is too light and the Tribunal perceives the Applicant likely to be resistant to any form of qualified suspension,[183] then what appears left is either a suspension or cancellation of registration for a period of time less than five years.
[183] Kazi and Migration Agents Registration Authority [2006] AATA 42. This case is an example of the Tribunal imposing a suspension which would be lifted on acceptance of certain conditions.
The Tribunal recognises that the cancellation of the Applicant’s registration to date has had a severe financial impact upon her, and this is a legitimate matter for the Tribunal to take into consideration.[184]
[184] Narayanan and Migration Agents' Registration Authority [2006] AATA 353 at [133].
While the reviewable decision in Narayanan refers to a section 311A decision to bar a former migration agent from registration, it is an interesting parallel in terms of its factual findings. There the Tribunal found that “several of the breaches which the Tribunal has upheld may be described as technical, others cannot.”[185] The Tribunal went on to find that:
·there were no circumstances beyond the applicant’s control which contributed to the breaches;
·the applicant accepted that he had breached certain parts of the Code but denied others which the Tribunal found to have been breached;
·no loss had been suffered by any of the agent’s clients;
·some of the services provided by the applicant were in his capacity as a migration agent while others were undertaken in his capacity as a solicitor;
·“[t]he Tribunal was not informed of any prior disciplinary breaches by the applicant in his capacity as an immigration agent (as distinct from as a legal practitioner)”;
·“[m]any favourable testimonials were tendered on behalf of the applicant with respect to his reputation”.[186]
[185] Idem.
[186] Idem.
Apart from the last comment, the issues in Narayanan and the approach of the Tribunal are instructive for these proceedings. In that case the Tribunal found that the breaches of the Code were “in the middle range of severity” and somewhat offset by the positive character references.[187] Here there are no such testimonials which might have weighed usefully in the Applicant’s favour.
[187] Ibid at [142]-[143].
The Tribunal in Narayanan considered that if it were to reduce the five-year bar to one lasting between two or three years then the weight taking “matters in their totality, fall[s] within the lower end of that range.”[188] It reduced the 5-year ban to a ban for two years and three months.
[188] Ibid at [143].
Variations of the length of a sanction have been frequent in recent matters in the Tribunal.
In Gu the Tribunal fund that the agent had acted in a way which reflected an “honest, albeit incorrect, belief about the state of the law and his obligations” and so lifted a suspension as of the date of the Tribunal hearing.[189]
[189] Gu and Migration Agents Registration Authority [2022] AATA 749 at [218].
In Liu the Tribunal imposed a suspension period dependent upon the agent undertaking approved courses to improve their understanding of ethical practices and standards, while in Jin the Tribunal overturned a finding that the agents was not a fit and proper person.[190]
[190] Liu and Migration Agents Registration Authority [2022] AATA 215; Jin and Migration Agents Registration Authority [2022] AATA 1251.
In Calabro the Tribunal emphasised that the sanction provisions were designed primarily to protect the integrity of the system rather than punish wrongdoers and reduced the sanction from a five year cancellation to a two year suspension.[191]
[191] Calabro and Migration Agents Registration Authority [2022] AATA 1378 at [96].
In finding that an agent was not personally dishonest but had placed “unwarranted trust in an employee” who acted dishonestly the Tribunal determined that a three year suspension rather than five year cancellation was appropriate,[192] while in another matter the Tribunal found that it was appropriate to strike a mid-way term of the sanction between what MARA and the applicant themselves proposed.[193]
[192] Khurana and Migration Agents Registration Authority [2020] AATA 4482 at [75].
[193] Bebawy and Migration Agents Registration Authority [2020] AATA 3987 at [94].
Lest it be thought that the Tribunal only acts to reduce sanctions, it should be noted that where appropriate it has given determinations increasing the period of suspension beyond that originally imposed by MARA.[194]
[194] Bulous and Migration Agents Registration Authority [2011] AATA 1594.
The Tribunal was inclined initially to suspend the Applicant’s registration and impose conditions for the lifting of that suspension related to changes in the Applicant’s administrative and record keeping practices, but the response of the Applicant’s representative and a conclusion reached by the Tribunal, on the basis of the Applicant’s direct testimony, that the Applicant herself is still not at the point of really admitting that her practices need to change, or that she was willing to embrace change, have dissuaded the Tribunal from that course of action.
This inevitably leaves only the option of the imposition of an unqualified suspension or cancellation. The Tribunal believes that a 5-year ban as imposed by MARA’s cancellation is too long and is disproportionate to the gravity of the breaches of the Code by the Applicant. A shorter period of time is warranted.
The Tribunal considered that perhaps a half-way mark of two years and six months (30 months) from the date of cancellation (9 January 2020) might be possible, but this would have resulted in the Applicant being able to recommence her practice immediately upon publication of the Tribunal’s decision.
The Tribunal believes that the Applicant should reflect upon the findings of the Tribunal and turn her mind to those changes in her practice which might prevent MARA from making any further, similar findings against her. It should be possible for her to do this in a relatively short period of time, say up to six months.
As a result the Tribunal will set aside the decision of 9 January 2020 and instead impose a suspension for a period of 3 years from that date.
FINDINGS
The Applicant has breached clauses 2.1, 2.8(a), 2.9(a), 3.2A, 5.2, 5.5, 6.1, 6.4 and 9.3 of the Code of Conduct for Registered Migration Agents.
DECISION
The reviewable decision made on 9 January 2020, being the decision of the Migration Agents Registration Authority to cancel the registration of the Applicant as a migration agent under section 303 of the Act, is set aside; and in substitution the Applicant’s registration as a migration agent under section 289 of the Act is suspended until 9 January 2023.

I certify that the preceding 270 (two hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.................................[sgd].......................................
Associate
Dated: 1 August 2022

Date(s) of hearing: 4 and 5 July 2022

Date final submissions received: 19 July 2022

Advocate for the Applicant: Mr A Duri, Yang and Duri Migration

Solicitors for the Respondent: Mr T Aviram, Clayton Utz

SERVICE
For taking instructions and management of you[65] immigration case in respect to: *Advice and assistance with (here inserted visa application or MRT application details)	$
Disbursements
Police clearance certificate from Australia	$ (always blank)
Courier of application for lodgement	$ (always blank)
Office photocopies	$ (always $250.00)
Postage, telephone, fax & sundries	$ (always $250.00)
Application fees as applicable at time of application	$
Toral Costs	$
GST	$
Total costs of services and disbursements including GST	$

Date(s) of hearing:	4 and 5 July 2022
Date final submissions received:	19 July 2022
Advocate for the Applicant:	Mr A Duri, Yang and Duri Migration
Solicitors for the Respondent:	Mr T Aviram, Clayton Utz