Vo and Migration Agents Registration Authority - [2007] AATA 1854

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1854
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1695

GENERAL ADMINISTRATIVE DIVISION )

Re THANH (DAN) VO

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr D Connolly AM, Member
Date 15 October 2007
Place Sydney

Decision
The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that Mr Vo is suspended from practice as a migration agent as and from the close of business on the 23 April 2007 up to and including the date of this decision and continues until he has fulfilled the following conditions:

(1) the successful completion of two CPD points on accounts management and/or financial management;

(2) the successful completion of private tuition in professional ethics for a minimum of four hours conducted by an individual or individuals approved by MARA who is either an immigration law specialist or a migration agent with a minimum of seven years experience; and

(3) that Mr Vo’s template service agreement complies with clause 11.3 of the Code of Conduct for migration agents.

....................[sgd].........................
Mr D Connolly AM
Member

CATCHWORDS
MIGRATION AGENTS – suspension of registration – breaches of code of conduct – onus of proof in relation to breaches of the code of conduct – whether agent providing immigration assistance – claim of denial of procedural fairness – mitigating circumstances – findings made in relation to various breaches – sanction – decision under review set aside and substituted with the Tribunal’s decision that the applicant is suspended from 23 April 2007 to the date of decision and continues until the conditions imposed are fulfilled
Legal Profession Act 2004 (NSW) – section 254
Migration Act 1958 – sections 5, 276, 280, 303, 304, 308, 309, 310, 311, 314
Migration Agents Regulations 1998 – Schedule 2
Issacs v Cachia (1985) 3 NSWLR 366
Re Altintas and Migration Agents Registration Authority [2004] AATA 978
Re Kazi and Migration Agents Registration Authority [2006] AATA 42
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Griffiths and Migration Agents Registration Authority [2002] AATA 247
Re Narayanan and Migration Agents’ Registration Authority [2006] AATA 353
REASONS FOR DECISION

15 October 2007 Mr D Connolly AM, Member

1. The applicant, Mr Thanh (Dan) Vo, applied to the Administrative Appeals Tribunal (“the Tribunal”) seeking a review of the decision (T5, pp.38-52) made on 23 April 2007 by the Migration Agents Registration Authority (“MARA”), pursuant to subsection 303(1)(b) of the Migration Act 1958 (“the Act”), to suspend his registration for six months and until the following conditions were satisfied:
· The Agent provides documentation of the following, and sufficient time has been allowed for the Authority to consider the documentation provided:
(1)the successful completion of two CPD [Continuing Professional Development] Points on Accounts Managements and/or Financial Management; and
(2)the successful completion of private tuition in Professional Ethics for a minimum of four hours conducted by an individual or individuals approved by the Authority who is either an immigration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vo and Migration Agents Registration Authority

Details

AGLC: Vo and Migration Agents Registration Authority [2007] AATA 1854
Case: [2007] AATA 1854
Decision Date: 15 October 2007

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was a review of a decision by the Migration Agents Registration Authority (MARA) to suspend the registration of Mr Vo, a migration agent, for breaches of the Code of Conduct. The legal issues centred on the onus of proof in relation to breaches of the Code of Conduct, whether Mr Vo was providing immigration assistance, and the procedural fairness of the decision-making process. The Tribunal also considered Mr Vo’s claims of mitigating circumstances and the appropriate sanction to be imposed.

The Tribunal found that the onus of proof in relation to breaches of the Code of Conduct was on the party asserting the breach, in this case, MARA. The Tribunal examined the evidence and concluded that Mr Vo had indeed breached the Code of Conduct in several respects, including failing to manage his accounts and finances properly, and not adhering to the ethical standards required of a migration agent. The Tribunal also found that Mr Vo was providing immigration assistance, which placed him within the regulatory framework of MARA. Regarding procedural fairness, the Tribunal determined that Mr Vo had not been denied a fair hearing, despite his claims to the contrary.

The Tribunal set aside the original decision and substituted its own decision, ordering that Mr Vo’s registration be suspended from 23 April 2007 until he fulfilled certain conditions. These included completing continuing professional development in accounts and financial management, receiving private tuition in professional ethics, and ensuring his template service agreement complied with the Code of Conduct. The Tribunal's decision was based on the seriousness of the breaches and the need to protect the public and uphold the integrity of the migration agents’ profession.

In summary, the Tribunal found that the decision to suspend Mr Vo’s registration was justified and substituted a new decision that included specific conditions for the resumption of his registration. The Tribunal's decision reflects a careful consideration of the evidence, the legal principles involved, and the appropriate sanction to ensure compliance with the Code of Conduct.

Orders

Orders of the court

The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that Mr Vo is suspended from practice as a migration agent as and from the close of business on the 23 April 2007 up to and including the date of this decision and continues until he has fulfilled the following conditions:

(1) the successful completion of two CPD points on accounts management and/or financial management;

(2) the successful completion of private tuition in professional ethics for a minimum of four hours conducted by an individual or individuals approved by MARA who is either an immigration law specialist or a migration agent with a minimum of seven years experience; and

(3) that Mr Vo’s template service agreement complies with clause 11.3 of the Code of Conduct for migration agents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		THANH (DAN) VO