Tran and Migration Agents Registration Authority

Case [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…

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Tran and Migration Agents Registration Authority [2022] AATA 2470
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[2022] AATA 2470
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CaseChat Overview and Summary

This decision concerned an appeal by Mr. Tran against a decision by the Migration Agents Registration Authority (MARA) to refuse his registration as a migration agent. The dispute arose from allegations that Mr. Tran had breached the Migration Agents Registration Scheme's Code of Conduct, specifically concerning the management of clients' affairs, financial arrangements, file completion, record-keeping, and his overall integrity and fitness to be registered. The matter was heard by Chris Puplick AM, Senior Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Mr. Tran had failed to manage his clients' affairs negligently, whether his financial arrangements were satisfactory, and if his files and applications were properly completed and his record-keeping met the required standards. Furthermore, the Tribunal had to assess whether Mr. Tran's response to MARA was satisfactory and, crucially, whether he was a person of integrity and a fit and proper person to provide immigration assistance.

The Tribunal's reasoning centred on the purpose of the Migration Agents Registration Scheme, established to improve professional standards and protect vulnerable clients from incompetent or unscrupulous agents. The scheme mandates registration, requiring applicants to meet statutory criteria and demonstrate integrity and fitness. Adherence to a published Code of Conduct is also mandatory. The Tribunal considered the historical context of the scheme's introduction, highlighting concerns about agents failing to lodge applications, lodging them incorrectly, causing adverse impacts on applicants' entitlements, and engaging in unprofessional conduct. The Tribunal's ultimate decision involved setting aside MARA's adverse findings and substituting its own decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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).