Tung and Migration Agents Registration Authority - [2002] AATA 920

DECISION AND REASONS FOR DECISION [2002] AATA 920

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/340

GENERAL ADMINISTRATIVE DIVISION          )
           Re      NEI-HWA TUNG
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date14 October 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.

[SGD] Ms N Bell
Member
CATCHWORDS
MIGRATION AGENTS REGISTRATION AUTHORITY – suspension of registration as a migration agent – whether the Applicant is a fit and proper person to give immigration assistance – examination of the Applicant's conduct as migration agent – examination of his knowledge of the Migration Act 1958 with regard to spouse visa applications and protection visas – held that the Applicant's knowledge is seriously lacking as to migration procedures – decision of MARA affirmed.

Migration Act 1958 ss 48, 48A, 49, 290, 290(1)(2)(3), 303, 303(a)(e), 501, 501(6)(c)(ii)

Fifita v Minister for Immigration and Multicultural Affairs [2000] FCA 1719
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Story v National Companies and Securities Commission (1988) 13 NSWLR 661

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr Nei-Hwa Tung ("the Applicant") for review of the decision of the Migration Agents Registration Authority ("the Respondent") dated 5 February 2002 to suspend the Applicant's registration as a migration agent until the following conditions have been satisfied:

a period of three years has passed from the date of notification of the Respondent's decision; or
the Applicant successfully completes a sound knowledge course and a reasonable time has been allowed for the Respondent to consider the matter; and
the Applicant provides a statutory declaration that he has not made immigration representations for a fee nor given immigration assistance whilst suspended.

At the hearing before the Tribunal the Applicant spoke on his own behalf with the assistance of an interpreter in the Cantonese language and the Respondent was represented by Ms Goodman, solicitor. The Applicant and Ms Diane Wechman, Mr Alan Hu and Mr Jingxin Wu gave oral evidence to the Tribunal.
The Tribunal had the following documents before it:
Exhibit No    Description Date
TD1 – TD34 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
TD2 Supplementary documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Statutory Declaration of Nei-Hwa Tung 24 June 2002
A2      Letter Nei-Hwa Tung to the AAT enclosing Chronology and References     12 September 2002
A3      Certificates of courses undertaken by Nei-Hwa Tung
A4      Letter from Laurie Ferguson, MP, to the AAT     9 September 2002
A5      Extract from training course for Migration Agents on Australian Immigration Law and Practice           15-23 March 1997

BACKGROUND

The decision under review arose out of a complaint lodged by Mr Rafael Caliwanagan ("the Complainant") to the Respondent.
The following chronology of events is not in dispute:

Date   Event
15/11/99        Application for Complainant to remain permanently in Australia on spouse grounds
1/8/01 Department of Immigration and Multicultural Affairs wrote to Complainant, care of Applicant, informing him that his application for residence in Australia was not valid
16/8/01          Applicant sent letter from Complainant's wife to DIMA seeking Ministerial intervention
7/9/01 Minister's delegate replied to Applicant's request for Ministerial intervention in the Complainant's case
3/10/01          The Complainant lodged a complaint against a Migration Agent, form M03, with the Respondent
26/10/01        The Respondent published the complaint to the Applicant and invited the Applicant to respond
15/10/01        The Applicant responded to the complaint
12/11/01        The Respondent resolved to send a section 308 letter to the Applicant
21/11/01        The Respondent published the Applicant's response to the complaint to the Complainant and invited the Complainant to respond to the response
3/12/01          The Complainant responded to the Applicant's response to his complaint
12/12/01        The Respondent decided to send a section 309(2) letter to the Applicant
17/12/01        The Respondent sent the Applicant a letter informing him that it was considering cautioning him, suspending or cancelling his registration and inviting him to make submissions on the matter
10/1/02          The Applicant responded to the section 309(2) letter
5/5/02 The Respondent decided to suspend the Applicant's registration for three years
15/2/02          The Respondent sent a letter to the Applicant advising him that it had decided to suspend his registration

ISSUES AND LEGISLATION

The relevant legislation is section 303 of the Migration Act 1958 ("the Act"). Section 303 provides:
303 Discretionary cancellation or suspension of registration etc.
The Migration Agents Registration Authority may:
(a)cancel the registration of a registered 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.
Section 290(2)(a) of the Act provides:
(2)In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a)the extent of the applicant's knowledge of migration procedure; and …
There is no issue, in this application, as to whether the Applicant's registration application was false or misleading, that the Applicant has become bankrupt or that the Applicant or an individual related to him by employment is not a person of integrity. The Respondent contends, however, that the Applicant is not a fit and proper person to give immigration assistance and that he has not complied with the Code of Conduct prescribed under section 314 of the Act.
The facts giving rise to that contention are not in dispute. The Complainant arrived in Australia as a visitor on 8 October 1996. On 16 October 1996 he lodged an application for a protection visa. That application was rejected and the Complainant did not take any further action within 28 days of the rejection. In June 1997 the Complainant entered into a de facto relationship with an Australian citizen and they married on 2 January 1999. The Complainant consulted the Applicant in his capacity as a migration agent and on 15 November 1999 the Applicant lodged, on the Complainant's behalf, an application for a spouse visa. On 1 August 2001 the Complainant received a letter from the Department of Immigration and Multicultural Affairs advising him that his application for a spouse visa was invalid. The Complainant then, on 3 October 2001, sent a letter of complaint to the Respondent. That letter said, relevantly (PT23):
"I came to Australia as a visitor on 8 October 1996 with the intention to visit my mother and sisters, Australian citizens. Within a couple of days of my arrival I consulted a solicitor, Mr Gonzales (now deceased), to enquire about further stay in Australia. I was referred to him by a fellow Filipino friend of my sister. Mr Gonzales prepared an application for a protection visa for me. I had, however, no understanding of the case written for me by him, nor of the process/es involved in the application and review procedures except that making the application allowed me to stay in Australia with proper authority.
I was never a refugee, as I later learned the definition of the term. Following the refusal of my application for a protection visa in April 1997 Mr Gonzales encouraged me to pursue my relationship with an Australian citizen, Mrs Evangeline Bautista, who subsequently became my wife, telling me that I would be able to apply for permanent residence were I to marry.
Ms Bautista and I married in January 1999 and she gave birth to our son, Ranier Caliwanagan, on 30 November 1999. In March 1999 I was introduced to another migration agent, Peter Nei Hwa Tung, through a friend of my wife. I was told to have my divorce done first with my previous wife before he could help me to lodge an on-shore spouse application. I followed what he told me to do and he helped me to lodge my spouse application in November 1999. I was continuously assured by him that my application was being processed by the DIMA, until he informed me that he received a letter from the Department saying that my application was invalid. On 16 August 2001 Mr Tung helped me to write a letter to the Minister by way of appeal, to which he attached a letter by my wife. The Minister replied on 7 September 2001, advising me to contact the Compliance Branch at the Department's Parramatta office. I did so and was granted a Bridging "E" visa.
I have arranged to leave Australia on 6 October 2001 and my wife is sponsoring my application to the Australian Embassy in Manila for readmission. Of course, in my application I have to deal with my previous abuse of migration law in the context of (Migration Regulations) criterion 4001; I have been an innocent participant in considerable abuse – I had no idea of refugee status applications in Australia and, for a long time after my spouse application was made, I had no idea it was invalid. By the time I knew, it was too late for me to do anything about it and to extricate myself from the web woven about me.
My complaint centers on the fact, as I now know, that Section 48 of the Migration Act always worked to prevent me from making an on-shore spouse application. I thought I had paid Mr Tung for truthful professional advice; was he so ignorant of the law that he unwittingly mislead me and is not competent to be registered to give migration advice or did he deliberately deceive me and is not, therefore, a fit and proper person to be so registered? Had he advised me properly, that I was not able to make an on-shore application, I would have returned to the Philippines immediately – had I done so I think I would now be a permanent resident in Australia. Instead, I am to leave on 6 October 2001 at a time when "good character" testing is, I understand, more rigorous than previously. As well, did Mr Tung not know that the law prevented intercession by the Minister in a case where there was not a review refusal existing? I did not know that, yet he, a professional migration agent, advised me otherwise, to the greater detriment of the visa application I shall soon make in Manila."
The Applicant contends that it was open to him to make the application for a spouse visa and that he did so on the basis of "compelling reasons", in particular, the Complainant's de facto relationship of more than two years, the Complainant's wife's pregnancy, illness and her dependency on the Complainant for financial support.
The Respondent also contended that the Applicant had breached clauses 2.1, 2.3, 2.4 and 2.23 of the Code of Conduct prescribed under section 314 of the Act. Those clauses provide:
"2.1 A migration agent must always:
a)act in accordance with the law and the legitimate interests of his or her client; and
b)deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client…
…
2.3A migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
2.4A migration agent must have due regard to a client's dependence on the agent's knowledge and experience…
…
2.23A migration agent must take all reasonable steps to maintain the integrity of the migration industry."
The issue of the extent of the Applicant's knowledge of the Act, the Regulations to the Act and the migration system generally, involves some consideration of those provisions of the Act and the Regulations to the Act that govern the eligibility of a person for a spouse visa when that person is, as in the case of the Complainant, onshore and previously had an application for a protection visa rejected. This involves a consideration of section 48 of the Act and clause 2.12 of the Regulations to the Act. These provisions are as follows:
48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
(1)       A non-citizen in the migration zone who:
  (a)       does not hold a substantive visa; and
  (b)       either:
(i)after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii)held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes
(2)       For the purposes of this section, a non-citizen who:
(a)has been removed from the migration zone under section 198; and
(b)is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
2.12     Certain non-citizens whose applications refused in Australia (Act, s. 48)
(1)For section 48 of the Act (which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused) the following classes of visas are prescribed:
(a)subject to subregulation (2), Special Eligibility (Residence) (Class AO);
(b)       * * * * *
  (c)       Protection (Class XA);
(ca)subject to subregulation (3), Medical Treatment (Visitor) (Class UB);
(d)       * * * * *
  (e)       Territorial Asylum (Residence) (Class BE);
  (f)        Border (Temporary) (Class TA);
  (g)       Special Category (Temporary) (Class TY);
  (h)       Bridging A (Class WA);
  (j)        Bridging B(Class WB);
  (k)       Bridging C (Class WC);
  (l)        Bridging D (Class WD);
  (m)      Bridging E (Class WE);
  (n)       Resolution of Status (Temporary) (Class UH);
  (o)       Resolution of Status (Residence) (Class BL);
  (p)       Child (Residence) (Class BT).
(2)Paragraph (1) (a) applies to a person if he or she meets the requirements of subclause 832.211 (3) of Schedule 2.
(3)Paragraph (1) (ca) applies to a person if and only if he or she meets the requirements of subclause 685.212 (6) or (7) of Schedule 2.

APPLICANT'S EVIDENCE

The Applicant told the Tribunal that he obtained his migration agent's registration in 1997 and first met the Complainant in that year and knew that he was in Australia illegally, having had his application for a protection visa rejected.
The Applicant said that he found out in 1999 that the Complainant had been in a de facto relationship for two years and that his de facto partner was pregnant, ill and dependent on the Complainant for financial support and he recalled from a course he had done that a person can stay in Australia if there are compelling reasons for them to do so.
The Applicant said he advised the Complainant it was better to lodge an application for a spouse visa offshore and said it would be very difficult for him to apply onshore but nevertheless possible based on humanitarian grounds. He said he was aware the Complainant had been refused a protection visa when he made the application for a spouse visa.
The Applicant said that he lodged an application for a spouse visa in person on behalf of the Complainant at the Parramatta office of the Department. He said he considered that the officer of the Department who received the application knew that the Complainant was "illegal". He said that two years later he was advised that the application was invalid.
When asked by the Tribunal whether he considers that he made a mistake by applying for the spouse visa, the Applicant said that the only mistake he made was that he did not ask the Complainant to write a letter setting out his circumstances.
The Applicant said he had received a "Distinction" in his migration agent training course and said that he considered that the "penalty" imposed on him by the Respondent is very harsh.
In cross examination, the Applicant said that he required an interpreter at the Tribunal hearing because he wanted to make sure there were no mistakes but he insisted that he had no problem with English.
He conceded that he is not familiar with the provisions of section 48 of the Act nor was he familiar with them at the time he advised the Complainant and for that reason did not raise section 48 with him. He maintained that "Schedule 3 – compelling reasons" was the basis on which he advised the Complainant to make an application for a spouse visa. He described this as an internal Department policy that was applied on a "very flexible" basis. The Applicant said:
"If you want to apply according to section 48 you cannot apply onshore but you can on humanitarian grounds."
In support of this statement, the Applicant referred the Tribunal to Attachment 3 of Exhibit A2, a letter, with identifying details omitted, from the Department to a person in relation to an application for permanent residence. Following a paragraph which notes that the person's substantive visa had ceased and that, because no application on spouse grounds had been lodged within 28 days of the visa ceasing, the requirements of "Schedule 3" had not been met, the letter states:
"The Schedule 3 criteria can be waived if there are compelling circumstances of a strongly compassionate nature involved in the case. According to policy, examples of compelling circumstances are where there are Australian citizen children of the relationship or where the couple have been in a genuine and continuing relationship for at least two years."
When it was pointed out to the Applicant that the letter concerned a person whose visa had ceased rather than a person whose application for a visa had been refused, the Applicant had no comment to make.
The Applicant confirmed that it had been, and continued to be, his understanding that, notwithstanding the provisions of section 48 of the Act, if there are compelling reasons, in the case of a person who has been refused a protection visa, then a spouse visa applied for onshore, may, in the discretion of the Department officer, be granted.
The Applicant said that the Complainant had become "illegal" and had no further choices available to him. He said he advised the Complainant that if he applied onshore and was unsuccessful he could then apply from overseas.
The Applicant was referred to section 501 of the Act, which provides for a character test to be applied to applicants for visas. The Applicant conceded that, pursuant to that provision, if the Complainant made an unsuccessful application for a visa he would then have a "bad record". He said that he did not advise the Complainant of this because it was his first case and he was very inexperienced.

The Applicant was also referred to his letter to the Respondent dated 15 November 2001 (T26), in answer to the complaint made by the Complainant. That letter says, at page 2:
"The Minister may determine that section 48A does not apply to a non-citizen. (Section 48B(1)). The Minister also does have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. (Section 48B(6))."
The Applicant said that the effect of those sections was that, based on humanitarian grounds, an applicant could write to the Minister to allow an applicant for a spouse visa to lodge an application onshore if the sponsoring spouse is an Australian resident.
The Applicant was also referred to his letter to the Respondent dated 10 January 2002 (T32) in which he said:
"Form 1026 'Limitation on Applicants in Australia'. It is said that you can apply only for a limited number of visas if you do not hold a substantive visa and you were refused a visa…The visas for which you can apply are…-change in circumstance (residence). Mr Rafael Caliwanagan's wife was 7 months pregnant and his circumstances have changed. So Mr Rafael Caliwanagan may qualify for compassion and compelling reasons. While most of the rules for migration are contained in the Act and Regulation, there are many areas where the exact meaning of the law is unclear or open to debate."
The Applicant confirmed, in his evidence to the Tribunal, that he was still of the view that the Complainant could have availed himself of the "change of circumstances" provisions of the Act and the Regulations but said that he did not refer to this when he was advising the Complainant.
Finally, the Applicant said that he had not used an interpreter with the Complainant, notwithstanding that the Complainant's native language was Philippine and the Applicant's native language was Cantonese because they were able to communicate in English. He added that it costs a lot of money to engage an interpreter.
Ms Diane Wechman's letter of 2 September 2002 says that the Applicant has been honorary auditor of Sefton High P&C Association Canteen books for the last three years. In her evidence to the Tribunal by telephone she said that when the Applicant asked her to write her letter he did not tell her its purpose. She said she only knows him as the person who does the books for the school canteen.
Mr Alan Hu's letter of 26 August 2002 states that he has known the Applicant for four years, that the Applicant is an accountant and a Justice of the Peace and that he is a fit and proper person to be a migration agent. In his evidence to the Tribunal by telephone, Mr Hu said that the Applicant acts as the accountant for all of Mr Hu's companies and that he has dealt with some visa problems for four of his clients. He said he considers that the Applicant is familiar with immigration law because he has immigration law books in his office.
Mr Jingxin Wu's letter of 13 May 2002 states that he has known the Applicant for three years and that he is an accountant and Justice of the Peace and an honest and hardworking person. He stated that the Applicant is fit and proper to be a migration agent. In his evidence to the Tribunal by telephone Mr Wu confirmed that he has been a migration agent since 1999. He said he considered the Applicant to be a fit and proper person to be a migration agent because of his age of 40 years and his status as a Justice of the Peace.
Mr Wu said that he and the Applicant have discussed some migration cases and he is of the opinion that in some areas, like marriage and spouse visas, the Applicant does not have a strong knowledge of the law and practice. He said that the Applicant had mentioned one case in particular where the Applicant's client had been ineligible to apply for a visa but the Applicant had made an application anyway. Mr Wu said that the Applicant had learned a lesson from that experience and has said to him that he would never do it again and that when he takes a "sound knowledge test" he will particularly concentrate on that area. Mr Wu was unable to comment as to whether the Applicant's skills had improved.
The letter dated 9 September 2002 of Laurie Ferguson, MP (Exhibit A4) to the Tribunal notes that:
" …Mr Tung has significant difficulties with the niceties of the language. At the same time that he argues to myself that he knew that the original spouse case had limited potential to succeed does not comprehend the distinction that his letter of defence stated that he and the complainant clearly understand it had no chance.
Mr Tung also seems genuinely to believe that DIMIA acceptance of the application implied a degree of adherence to his argument. He clearly noted therein that the applicants visa had elapsed etc. This is a mistaken analysis but I believe that he is honest in his view.
I also note his contention that he was originally approached in 1977 but refused action as the parties had not been defacto for two years but took up the issue after a further two years had passed. He feels that there was an arguable case at later that stage due to the relationship, spouse's medical condition and pregnancy.
I do not doubt that Mr Tung has had difficulties fulfilling the expected high standards. Nevertheless, I am advised that this was his first case…
I can only submit that any decision should certainly deal with Mr Tung's lack of skill but appreciate that there may have been minimal malfeasance, due to his skills deficit."

SUBMISSIONS

The Applicant submitted that the Respondent's decision is too harsh. He said that if he made any mistakes, which he did not admit, they were only minor. He also objected to the Respondent having published its decision to suspend the Applicant on its website and also argued that any damage to the Complainant had been caused or compounded by the Department having taken two years to reject the application for a spouse visa as an invalid application. He maintained that the Respondent has "concentrated too much on section 48" of the Act and that it was open to him to argue "compelling reasons" in the application for a spouse visa.
Ms Goodman, for the Respondent, dealt with the Applicant's concern about the publication of the Applicant's suspension by noting that pursuant to section 287 of the Act the Respondent must maintain a register of migration agents including particulars of any suspension of an agent's registration. She conceded that the register appeared at the Respondent's website but said that a separate power, under section 305 of the Act, to publish the decision to suspend the Applicant's registration, had not been exercised pending the outcome of this application.
Ms Goodman, in relation to the Applicant's concern that the Department had taken two years to reject the application for a spouse visa as invalid, submitted that there was no evidence that the Department officer knew that the Complainant's application was invalid when it was received and that this is not relevant, in any event, to the question of what advice had been given to the Complainant by the Applicant or to his knowledge and understanding of migration law. She noted that it is not the role of a person staffing the desk of a Department office to determine whether an application is valid and that such a view serves to illustrate the Applicant's lack of understanding of the immigration system.
Ms Goodman submitted that the Complainant's correspondence to the Respondent is evidence of his having relied on the Applicant for advice and evidence of what that advice was. Ms Goodman also submitted that the Applicant's evidence to the Tribunal, his letters to the Respondent and the evidence of Messrs Wu and Ferguson show the Applicant's lack of understanding of migration law and procedures from the time he dealt with the Complainant to the present. In this respect, she drew the Tribunal's attention to the decision of the Federal Court in Fifita v Minister for Immigration and Multicultural Affairs [2000] FCA 1719. This lack of understanding amounts, in Ms Goodman's submission, to a lack of compliance with the Code of Conduct and establishes that the Applicant is not a fit and proper person to be a migration agent.
Ms Goodman also drew the Tribunal's attention to the "character test" and its application by section 501 of the Act. In particular, Ms Goodman submitted that the provisions of section 501(6)(c)(ii) mean that the Complainant's invalid application for a spouse visa will stand against his future eligibility for a visa. Section 501(6)(c)(ii) provides:
"501…
(6)       For the purposes of this section, a person does not pass the "character test" if:
…
(c)       having regard to either or both of the following:
…
(ii)       the person's past and present general conduct:
the person is not of good character."
Ms Goodman referred the Tribunal to the decision of Deputy President Chappell in ReMay and Minister for Immigration and Multicultural Affairs [2000] AATA 480 in which the issue of good character, and in particular the character test under section 501(6)(c)(ii) of the Act, was considered.
Ms Goodman also referred the Tribunal to the decision of the New South Wales Supreme Court in Story v National Companies and Securities Commission (1988) 13 NSWLR 661 in which Young J held that the following matters are to be weighed when considering the revocation of a licence:

the public interest that people should be permitted to follow a trade or profession for which they are qualified;
the public expect those who fall short of the minimum standards to be removed from the profession until the regulatory body can be assured that they are able to perform their functions efficiently; and
revocation is purely for the public benefit and is not punitive.

Ms Goodman submitted that the passing by the Applicant of a sound knowledge course, being one of a number of courses approved by both the Respondent and the Department and run by Universities and/or the Immigration Advice and Rights Service, would satisfy the Respondent that the gaps in the Applicant's knowledge and skill had been remedied. Ms Goodman said she had no clear instructions as to why a period of three years suspension was specified in the decision under review except that it reflects the seriousness of the deficits in the Applicant's knowledge. However, Ms Goodman emphasised that, under the terms of the decision under review, the period of the suspension need only be the period required to complete the sound knowledge course.
CONSIDERATION
The Tribunal is satisfied, on the basis of the Applicant's evidence, the Complainant's correspondence to the Respondent and the evidence of Mr Ferguson and Mr Wu, that the Applicant advised and assisted the Complainant to lodge an onshore application for a spouse visa in circumstances where the Applicant knew that the Complainant had previously had an application for a protection visa rejected. The Tribunal is also satisfied, on the basis of the Applicant's evidence and his correspondence to the Respondent, that the Applicant took the view, and continues to hold the view, that, notwithstanding the provisions of section 48 of the Act and clause 2.12 of the Regulations to the Act, where there are compelling reasons, a person in the circumstances of the Complainant may make a valid onshore application for a spouse visa.
The Tribunal is also satisfied that the Applicant, in his submissions and correspondence to the Respondent, put forward, and currently holds, the view that that the effect of sections 48A and 48B of the Act is that, based on humanitarian grounds, an applicant can write to the Minister to allow an applicant for a spouse visa to lodge an application onshore if the sponsoring spouse is an Australian resident.
The Tribunal is also satisfied that the Applicant, on his own evidence, considers that he made no mistake and regards the complaint made against him as involving a minor matter.
The terms of section 48 of the Act are clear and have been considered by the Federal Court. In Fifita v Minister for Immigration and Multicultural Affairs [2000] FCA 1719, Sackville J said:
"The difficulty confronting the applicant is that, after last entering Australia, she was refused a visa, namely the protection visa for which she had applied in September 1996. The effect of s 48(1) of the Migration Act in these circumstances is that the applicant is permitted only to apply for a visa of a class prescribed. An application for any other class of visa is prevented by s 48 and is therefore invalid: s46(1)(d); Bagang v Minister, at 59."
It is clear that, in maintaining the view that, notwithstanding the operation of section 48 of the Act, an application by a person in the circumstances of the Complainant, for a spouse visa on shore may succeed, the Applicant was, and remains, fundamentally incorrect. While it is a matter of some concern that the Applicant held and acted on that view in his advice and assistance to the Complainant, it is a matter of grave concern that, even after his dealings with the Respondent, and after reading and hearing the evidence of Mr Ferguson and Mr Wu, he clings to that view.
It is also a matter of concern that the Applicant raised in his correspondence to the Respondent, an argument that the effect of sections 48A and 48B of the Act is that, based on humanitarian grounds, an applicant can write to the Minister to allow an applicant for a spouse visa to lodge an application onshore if the sponsoring spouse is an Australian resident. Sections 48A and 48B of the Act clearly apply to further applications for protection visas where an application for a protection visa has been refused. The provisions have no application to spouse visas.
Document T32 is the Applicant's submission to the Respondent dated 10 January 2002. In that submission the Applicant appears to attempt to lay the blame for the making of an onshore spouse visa on the Complainant, submitting that the Complainant still wanted to "take a chance no matter how little chance there is." The Applicant also sought to place blame on the officer of the Department who received the application from him and gave him a receipt number. He said, in his submission:
"When the Department officer received the application form, all the information contained in the application should have been checked. This includes information in the form itself and documents attached to the application. It was deemed that the application was valid in the beginning yet why was a letter that said it was an invalid application two years later? Has the immigration policy changed not consentaneous (sic) or does the immigration officer have a negligence of his duty(sic)?"
The Tribunal finds, on the basis of this evidence, that the Applicant does not accept responsibility for his error.
These findings lead the Tribunal to conclude that the Applicant's knowledge and understanding of migration law and procedure in relation to spouse visas and, to at least some extent, in relation to protection visas, was, and remains, poor. The Tribunal also concludes that the Applicant has, now, little awareness of the deficiencies in his knowledge and understanding. Nor does he allow that the Complainant was dependent on his knowledge and experience or that he contributed to any detriment to the Complainant.
The Respondent submitted that the detriment to the Complainant may include the possible failure by the Complainant of the "character test" in the event of a further application by him. There is insufficient evidence before the Tribunal for it to reach a conclusion as to the likelihood of the Complainant's future application being prejudiced in this respect. However, the possibility having been raised, it can be said that the Complainant may now find himself in the position of having to meet an argument as to his character.
Having found that the Applicant's knowledge and understanding of migration law and procedure in relation to spouse visas and protection visas, was, and remains, poor, the Tribunal considers that the Applicant's knowledge of migration procedure (section 290(2)(a) of the Act), at least in these areas, is seriously lacking.
The Tribunal notes that, pursuant to section 290(2)(h) of the Act, the Respondent, and therefore the Tribunal, must also take into account "any other matter relevant to the applicant's fitness to give immigration assistance" in determining whether the Applicant is a fit and proper person to give immigration assistance. In this respect the Tribunal considered the relevant clauses of the Code of Conduct, that is, clauses 2.1 (acting in accordance with the law and the legitimate interests of the client and with diligence and competence), 2.3 (sound working knowledge of the Migration Act and Regulations, accurate and timely advice), 2.4 (due regard to a client's dependence on agent's knowledge and experience) and 2.23 (take all reasonable steps to maintain the reputation and integrity of migration industry).
Given the Tribunal's conclusions as to the Applicant's knowledge and understanding of migration law and procedure and as to his lack of awareness of the deficiencies in his knowledge and understanding, the Tribunal is satisfied that the Applicant has breached clauses 2.1 and 2.3 of the Code of Conduct. The Tribunal's conclusions as to the Applicant's failure to accept that the Complainant was dependent on him for advice and assistance or that he contributed to any detriment suffered by the Complainant lead the Tribunal to further conclude that the Applicant breached clauses 2.4 of the Code of Conduct. As to whether the Applicant failed to "take all reasonable steps to maintain the reputation and integrity of the migration industry", it is possible that the conduct giving rise to the above breaches could serve to bring the "migration industry" into some disrepute. The Tribunal therefore concludes that the Applicant did not take all reasonable steps to maintain the reputation of the migration industry and therefore breached clause 2.23 of the Code of Practice.
The Tribunal further concludes, on the basis that the Applicant's knowledge of migration procedure is seriously lacking and that he breached clauses 2.1, 2.3, 2.4 and 2.23 of the Code of Conduct, that the Applicant is not a fit and proper person to give immigration assistance. On this basis, and on the basis of the Applicant's failure to comply with the Code of Conduct, the Respondent was entitled to exercise its discretion under section 303 of the Act to suspend the Applicant's registration.
The Tribunal considers that, given that the failing, on the part of the Applicant, at the heart of the decision to suspend registration was the Applicant's lack of knowledge and understanding of migration law and procedure, it is appropriate to tie the period of the suspension to the completion by the Applicant of a sound knowledge course. The completion of such a course, that is, a course of the type already jointly approved by the Department and by the Respondent and administered by a university or by the Immigration Advice and Rights Service, would address the deficiency at the centre of the Applicant's lack of fitness to give immigration assistance. The decision in this respect is rehabilitative rather than punitive in that it allows for the Applicant to recommence his functions as a migration agent when, after the completion of the course, he is equipped to do so competently (Story v National Companies and Securities Commission (supra)). The Tribunal agrees that a period of suspension of three years is rather long but, by the terms of the decision, the period of suspension need only be as long as is required by the Applicant to complete the course.
For the reasons outlined above, the Tribunal affirms the decision under review.
DECISION
The Tribunal affirms the decision under review.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: .....................................................................................
Associate

Date of Decision  14 October 2002
Representative for the Applicant              Self represented
Representative for the Respondent        Ms S Goodman, Solicitor