Vasudevan and Migration Agents Registration Authority (Migration)

Case [2020] AATA 3640

Vasudevan and Migration Agents Registration Authority (Migration) [2020] AATA 3640 (16 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/7348

Re:Rathinam Vasudevan

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:16 September 2020

Place:Sydney

The decision under review is affirmed.

........................[sgd]............................................

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION AGENTS – registration – cancellation of registration as a migration agent – whether non-compliance with Code of Conduct – whether the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance – whether the Tribunal should exercise its discretion to cancel the Applicant’s registration –  immigration assistance – failure to act diligently – where failure to properly respond to complaint – where provision of misleading and deceiving information to the Respondent and the Department – where failure to maintain proper records – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 276, 290, 300, 303, 304, 305, 306, 308, 309, 314, 316, 321A

CASES

Australian Broadcasting Authority v Bond [1990] 170 CLR 321

Briginshaw v Briginshaw (1938) 60 CLR 362

Davies v Australian Securities Commission and Another (1995) 131 ALR 295

Hudson and Migration Agents Registration Authority [2004] AATA 1007

Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127

Kraues v Migration Agents Registration Authority [2018] FCA 664

Krause v Office of Migration Agents Registration Authority [2019] FCAFC 52

Lilenthal v Migration Agents Registration Authority [2002] FCA 93

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] 67 ALR 170

Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12

Re Christopher Gerald Narayanan and Migration Agents Registration Authority [2006] AATA 353

Re Davis (1947) 75 CLR 409

Re Nima Mottaghi and Migration Agents Registration Authority [2007] AATA 60

Shi v Migration Agents Registration Authority [2008] HCA 31

Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812

Tejani and Migration Agents Registration Authority [2009] AATA 240

REASONS FOR DECISION

Chris Puplick AM, Senior Member

16 September 2020

The Migration Agents Registration Scheme

  1. In 1992 the Migration Act 1958 (Cth) (the Act) was amended[1] 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”[2] to clients seeking to navigate the complexities of the Act.

    [1] Migration Amendment Act (No. 3) 1992 (Cth).

    [2] Section 276 of the Act.

  2. 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.”[3]

    [3] Hansard, House of Representatives, 27 May 1992 at 2937.

  3. 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…

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Details
AGLC
Vasudevan and Migration Agents Registration Authority (Migration) [2020] AATA 3640
Case
[2020] AATA 3640
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Vasudevan against a decision by the Migration Agents Registration Authority (MARA) to cancel his registration as a migration agent. The dispute arose from a complaint lodged by a client, Ms Chhetri, alleging that Mr Vasudevan had failed to provide the immigration assistance for which she had engaged him, despite significant payments. Ms Chhetri also alleged difficulties in obtaining refunds and that the situation had a detrimental impact on her health and wellbeing. MARA's investigation led to the cancellation of Mr Vasudevan's registration on the grounds that he had breached several clauses of the Code of Conduct for migration agents and was not a fit and proper person to provide immigration assistance.

The Tribunal was required to determine whether Mr Vasudevan had indeed failed to act diligently and provide proper immigration assistance, whether he had provided misleading or deceptive information to MARA and the Department, and whether he had failed to maintain proper records. Furthermore, the Tribunal had to consider whether these findings warranted the cancellation of his registration, and if so, whether it should exercise its discretion to do so. A key aspect of the proceedings involved the Tribunal's consideration of the applicant's failure to provide direct evidence to explain inconsistencies in the documentary material before it, leading to the application of the principle in *Jones v Dunkel*.

The Tribunal reasoned that the applicant's failure to adduce evidence to clarify numerous inconsistencies in the file notes and other documents allowed for an inference that such evidence would not have assisted him. Applying the principle from *Jones v Dunkel*, the Tribunal drew with greater confidence the inference that the applicant had intentionally provided false and misleading information. The Tribunal noted that MARA bore the onus of proving its case for cancellation and sanctions, referencing previous decisions that cautioned against assuming allegations of non-compliance were prima facie correct. However, based on the available evidence and the applicant's failure to rebut it, the Tribunal found that the applicant had breached multiple clauses of the Code of Conduct, including failures to act diligently, provide misleading information, and maintain proper records.

The Tribunal affirmed the decision of MARA to cancel Mr Vasudevan's registration as a migration agent. The Tribunal concluded that the applicant was not a person of integrity and was not a fit and proper person to provide immigration assistance, thereby satisfying the grounds for cancellation under section 303(1)(f) of the Migration Act 1958 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the event, after final submissions were lodged by the Applicant, the material before the Tribunal consisted of the following:·Section 37 Tribunal Documents (paginated from page 1 to page 294).·Respondent’s Tender Bundle (paginated from page 1 to page 112).·Amended Applicant’s Statement of Facts, Issues and Contentions, lodged 24 March 2020, running to 22 paragraphs.[15]·Respondent’s Statement of Facts, Issues and Contentions, dated 24 June 2020, running to 78 paragraphs.·Transcript of the hearing held on 29 July 2020 (paginated from page 1 to page 12).·Applicant’s Written Outline of Submissions, dated 29 July 2020, tendered in association with the application for a hearing on the papers, and running to 11 pages.·Respondent’s Written Submissions, dated 7 August 2020, running to 39 paragraphs with an Annexure of 3 pages containing certain visa details.·Applicant’s Reply dated 12 August 2020, being a 3-page document.[15] The document is undated but was lodged with the Tribunal on 24 March 2020.Applicant’s evidence: initial comment No direct evidence was given by the Applicant,[16] and at both the hearing,[17] when the application for this matter to be determined on the papers was made, and in their written submissions, the Respondent put to the Tribunal that it should be conscious of the point made by the High Court in Jones v Dunkel. This was outlined as follows:[16] Transcript, 29 July 2020 page 4 lines 39-41.[17] Transcript, 29 July 2020 page 3 lines 24-26.The SFIC at [45]-[59] outlines the numerous inconsistencies and contradictions in the evidence presently before the Tribunal, such as the internal inconsistencies in the file notes (TD 155-160), and the inconsistency between the file note (TD 159-160) and the 457 business sponsor application: TD 138-144. The Applicant has elected not to give any evidence about these matters. The consequence of the Applicant’s failure to adduce evidence clarifying these inconsistencies is that the Tribunal can draw an inference that any such evidence would not have assisted him in accordance with the principle formulated by Kitto J in Jones v Dunkel (1959) 101 CLR 298 (at 308) as follows:any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absenceWhen the principle applies, 2 different types of result may follow:21.1. the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness21.2. the tribunal of fact might draw with greater confidence any inference favourable to the party seeking to draw that inference, if a witness who is in a position to cast light on whether that inference should properly be drawn is not called: see Manly Council v Byrne and Anor [2004] NSWCA 123 at [51] per Campbell J, with whom Beazley JA and Pearlman AJA agreed.The Jones v Dunkel principle is clearly applicable in the present case as the Applicant is in a position to give evidence about the irreconcilable inconsistencies in the documentary evidence before the Tribunal and has chosen not to do so. In light of the inconsistencies, and applying the principle in Jones v Dunkel, the Tribunal could draw with greater confidence the inference available from the face of the documentary evidence that the Applicant had intentionally provided false and misleading information to the Respondent and the Department.

Decision

Reasons for decision

That said, the Tribunal recognises that the obligation lies upon MARA, as it does upon any equivalent statutory scheme regulator, to prove its case for the making of findings and imposition of sanctions. This was made clear in a case involving the Australian Skills Quality Authority (ASQA) which is the national regulator of the National Vocational Education Training Scheme, where the Tribunal stated, in relation to the presentation of material to this Tribunal that:“We have concluded that in future cases where there is a contest about non-compliances, ASQA must start and do so without the assumption that its allegations of non-compliance are prima facie correct.”[18][18] Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812 at [13].The basis for the cancellation decision Put shortly, MARA based its decision to cancel the Applicant’s registration on findings that:(i)The Applicant had breached several clauses of the Code; and(ii)The Applicant was not a fit and proper person or a person of integrity to be authorised to give migration assistance under section 303(1)(f) of the Act.[19][19] T Documents at 9. Section 303 of the Act provides: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. Details of these concerns and findings were set out in a Decision Record dated 31 October 2019 which runs to 158 paragraphs over 30 pages, plus Attachments.[20][20] T Documents at 12-42. MARA’s concerns were triggered by a complaint which it received from Ms Devi Kumari Dhakal Chhetri about the way in which migration assistance had been provided to her by the Applicant. It is therefore necessary for the Tribunal to outline both the history of the Applicant as a migration agent, the nature of the complaint of Ms Chhetri, the findings of the MARA investigation, the relevant sections of the Code and the response of the Applicant to any of these findings.The Applicant as a migration agent The Applicant’s initial registration as a migration agent took place on 4 September 2001 and he operated his business under the name of Krish Associates Pty Ltd. His registration was subject to annual renewal[21] and was continuously renewed, with the last valid renewal taking place on 4 July 2019. A further renewal application was made on 22 August 2019 and consideration of it is in abeyance pending the outcome of these proceedings. The decision to cancel the Applicant’s registration was made on 31 October 2019.[21] Section 300(5) of the Act. Ms Chettri’s complaint

Ratio Decidendi

Legal Principle Established

It is therefore necessary for the Tribunal to outline both the history of the Applicant as a migration agent, the nature of the complaint of Ms Chhetri, the findings of the MARA investigation, the relevant sections of the Code and the response of the Applicant to any of these findings.The Applicant as a migration agent The Applicant’s initial registration as a migration agent took place on 4 September 2001 and he operated his business under the name of Krish Associates Pty Ltd. His registration was subject to annual renewal[21] and was continuously renewed, with the last valid renewal taking place on 4 July 2019. A further renewal application was made on 22 August 2019 and consideration of it is in abeyance pending the outcome of these proceedings. The decision to cancel the Applicant’s registration was made on 31 October 2019.[21] Section 300(5) of the Act. Ms Chettri’s complaint Under the provisions of section 306C as it applied at the relevant time for these proceedings,[22] Ms Chhetri was a “client” of the Applicant because she used his services as a migration agent to obtain “immigration assistance.”[23][22] i.e. before the 2020 amendments.[23] Hudson and Migration Agents Registration Authority [2004] AATA 1007 at [97]. Ms Chhetri made her complaint to MARA on 4 April 2017, the essence of which was that the Applicant had failed to provide her with the immigration assistance for which she had applied. In particular, he had not acted upon her application for an employer sponsored visa and then a visa under the Regional Sponsored Migration Scheme (RSMS). In the meantime, on his advice, she applied for and was granted a student visa,[24] but she undertook this application without his assistance, although she had previously requested it. During the course of her engagement with the Applicant’s services she paid him significant sums of money for his services which were eventually refunded. The failure to provide the agreed upon services, the Applicant’s unavailability to Ms Chhetri and the difficulties occasioned in obtaining refunds of monies paid had, according to the complainant, a detrimental impact on her health and wellbeing and resulted in her loss of confidence and trust in him and thereafter her complaint to MARA.[25][24] T Documents at 14, footnote 2.[25] T Documents at 14. After MARA had commenced its investigations of Ms Chhetri’s complaint (on 21 September 2017), Ms Chhetri withdrew her complaint on 18 October 2017. The reasons she gave for this were that:“I have settled the dispute with Vasudevan Rathinam and have received the payment in question to my satisfaction.As a result of the above I permanently release Vasudevan Rathinam from any claims by me in my letter of complaint.”[26][26] T Documents at 58.MARA’s investigations and findings As noted above, MARA was established as the regulator of the Scheme with the specific responsibility of monitoring the quality of services provided by registered migration agents and to ensure the Scheme’s overall and continuing integrity.