Vo and Migration Agents Registration Authority
[2007] AATA 1854
•15 October 2007
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 law specialist or a migration agent with a minimum seven years’ experience; and
(3)that the Agent’s template service agreement complies with clause 11.3 of the Code.
2. In making its decision, MARA was satisfied, pursuant to subsection 303(1)(h), that Mr Vo had not complied with the Code of Conduct (“the Code”) prescribed under section 314 of the Act.
BACKGROUND
3. Mr Vo was first registered as a migration agent on 14 November 2000. On 13 November 2004, his registration lapsed. He was re-registered in February 2005 and remained registered until MARA suspended his registration on 23 April 2007.
4. Apart from being a registered migration agent, Mr Vo also practiced as a solicitor until the suspension of his practising certificate. Mr Vo’s business interests, operating under the names of Legal House, Australasia Legal and Migration Services and International Business College (“the College”) (among others), provided immigration assistance, legal services, training and assessment. Mr Vo engaged several people in various capacities to assist him in his business activities including a marketing manager and others involved in the work of training and assessment.
5. On 19 July 2005, MARA received a complaint about Mr Vo from Mr Hoang Kim Bui (Complaint 3092). Mr Bui had retained Mr Vo to act on behalf of his brother, Mr Bui Ngoc Thoai, and cousin, Mr Doan Ngoc Hien. Mr Bui signed two retainer/cost agreements on 16 May 2005 (T25, pp.298-301, 302-305) each of which stated:
The Work required by the Client and to be performed by the Firm is as follows:
1.1To conduct all necessary legal research and advise the Client generally with respect to Skilled migration to Australia, if any.
1.2 To apply for skill assessment and eventually skill migration.
6. According to Mr Bui’s statutory declaration dated 7 July 2005 (T25, p.294-296), Mr Bui’s relatives were ultimately seeking to apply for permanent residency in Australia. Mr Bui instructed Mr Vo to prepare a student visa application for his brother (covering his wife and child), who resided in Vietnam, and to make arrangements for his brother to study to become an electrician at TAFE. Mr Vo was instructed to transfer the student visa for Mr Bui’s cousin from the Master of Electrical Engineering course he was currently undertaking at the University of Western Sydney to the TAFE electricians course.
7. Each retainer/cost agreement signed by Mr Bui provided that an upfront payment of $5,000 (excluding GST) would be paid on execution. A deposit of $5,000 was paid upfront by Mr Bui (T25, p.306). Later, Mr Bui became dissatisfied with the advice provided by Mr Vo and, by letter dated 2 June 2005 (T26, p.307) terminated Mr Vo’s services and sought clarification of the total costs and disbursements, noting that $5,000 had been paid to “AUSTALIA LEGAL & MIGRATION AKA THE LEGAL HOUSE” (sic). On 15 June 2005, Mr Bui met with Mr Vo who allegedly told him that a full refund was possible if Mr Vo could find two students to replace Mr Bui’s relatives. On 1 July 2005, in a further conversation, Mr Bui alleged that Mr Vo told him that “the $5,000 you have paid up front whether you wish to proceed or not is money you would never see again” and “I have spoken to a group of solicitors and I am allowed to demand another $10,000 from you. My lawyer is the best in New South Wales and no one can beat him”.
8. On 4 August 2005 MARA sent a letter to Mr Vo advising him it had “received information about your conduct as a migration agent” and requested, pursuant to subsection 308(1)(c) of the Act, Mr Bui’s file (T22, pp.283-284). Mr Vo complied with this request and provided Mr Bui’s file on 8 September 2005 (T22, pp. 245-259). It does not appear that Mr Vo was fully apprised of the substance of Mr Bui’s complaint by MARA until a copy of the complaint was attached to a letter dated 8 January 2007. However, a copy of the statutory declaration made by Mr Bui which formed the basis of his complaint was provided to Mr Vo as an enclosure to a letter sent to Mr Vo by another legal practitioner who Mr Bui had temporarily instructed to pursue his claim for a refund. In a letter to MARA dated 7 September 2005 Mr Vo made some submissions to MARA on the basis that Mr Bui’s complaint concerned his demand for a refund and without being aware or anticipating that Mr Bui’s complaint raised or would raise other concerns about Mr Vo’s conduct to MARA (T22, p.258). A copy of the complaint was not sent to Mr Vo sooner, according to a Conduct Advisory Panel Report – Professional Standards Committee Report (T11, pp.98-118), because:
It was determined (November/December 2005) that a section 309(2) notice should not be issued as another complaint (MARA reference 3292) against the Agent had just been published and the PSC [Professional Standards Committee] awaited a response to this complaint before issuing the section 309(2) notice which would address MARA references 3092 and 3292.
It appears that the Agent did not respond to the complaint comprising MARA reference 3292…
The instruction in the PSC File Note dated 25 January 2006 states that the section 309(2) notice on MARA reference 3092 should await the response on complaint 3292.
I note that I provided a draft section 309(2) notice dated 15 May 2006 which did not state the date of publication of that complaint nor the relevant response date. It appears that this notice was not finalised.
9. Another letter, also dated 4 August 2005, was sent by MARA to Mr Vo (T23, pp.285-286). This letter also notified Mr Vo that MARA had “received information about your conduct as a migration agent”. The letter noted that one of MARA’s functions was “to monitor the conduct of registered agents in their provision of immigration assistance”. The letter requested Mr Vo to provide a copy of his clients’ account bank statements, proof he maintained a professional library, a copy of his template contract or service agreement and a “a copy of [his] records for the past two months … which demonstrate that [he had] provided to each client before starting to work for that client, a copy of the Information on the Regulation of the Migration Advice Profession”. This request was made “in accordance with the Authority’s monitoring function and pursuant to section 308(1)(c) of the Act”. Mr Vo provided a selection of documents to MARA on 8 September 2005.
10. On 20 February 2006, MARA opened a new complaint file (Complaint 3509) to deal with issues arising out of the documents provided by Mr Vo on 8 September 2005 in response to MARA’s notices dated 4 August 2005. MARA identified problems with Mr Vo’s clients’ account, contract and file note-taking system. On 23 March 2006 a section 308(1) notice was sent to Mr Vo notifying him of these issues and requesting he provide an amended template contract, bank statements for his clients’ account and a statutory declaration answering questions about the procedures in place for making file notes of conversations with clients (T20, pp.217-219). Mr Vo’s response dated 27 April 2006 included an amended contract, copy of trust account statements and a statutory declaration regarding “file notes management” (T17, pp.131-173, T18, p.174). In relation to the issue of the file notes a further notice was issued on 4 May 2006 (T16, p.129-130) which was responded to by Mr Vo with a statutory declaration dated 30 May 2006 (T14, p.125). In its notice of decision, MARA stated it was not satisfied that there had been a breach of the Code in relation to the recording of file notes, although he was advised to review his procedures as they could lead to a breach in the future.
11. On 24 March 2006, MARA received a complaint about Mr Vo’s conduct from Ms Thi Kim Oanh Ngo (Complaint 3549) (T21, pp.220-244). The retainer/cost agreement indicated Mr Vo was retained to “conduct all necessary legal research and advise the Client generally with respect to Spouse migration to Australia, if any” and “to apply for a spouse visa …” (T21, pp.231-234). Ms Ngo paid Mr Vo $2,500 on 25 June 2005. An additional $1,000 was paid to Mr Vo on 15 February 2006. Subsequently, Ms Ngo withdrew her instructions and sought a refund of some of the fees paid. In a letter to MARA dated 22 March 2006, Ms Ngo stated that Mr Vo had advertised his migration business without quoting his Migration Agent Registration Number (“MARN”), had not deposited her funds in a trust account as he was required to do under the Code and applied for a waiver of condition 8503 (no further stay) which prevented her from applying for permanent residence knowing she had overstayed so there was no chance the waiver application would be successful, all the while telling her that he had applied for permanent residence. In a statutory declaration dated 20 March 2006, supplied to MARA, Ms Ngo stated that she signed a contract which she didn’t understand because of her poor English and had been asked by Mr Vo to sign blank documents.
12. Ms Ngo’s complaint was published to Mr Vo by letter dated 12 April 2006 (T19, pp.175-176). MARA requested Ms Ngo’s file and a written response by 17 May 2006. Mr Vo supplied Ms Ngo’s file and responded to the complaint in a letter dated 17 May 2006, which was received by MARA on 22 May 2006 (T19, p.185-188). Mr Vo made a further response in a letter dated 24 May 2006 (T19, pp.214-216). Mr Vo also wrote to MARA on 27 June 2006 informing it that Ms Ngo’s complaint should be dismissed as the Law Society of New South Wales (“the Law Society”) had dismissed her complaint (T13, p.121). The attached correspondence from The Office of the Legal Services Commissioner to the Law Society clearly states that it considered it appropriate for the Law Society to dismiss the complaint from Ms Ngo on the grounds that during the course of mediation Mr Vo was threatened by Ms Ngo’s husband and also “that MARA is dealing with a complaint containing identical allegations”.
13. On the recommendation of a member of the Professional Standards Committee, made in a report received on 13 November 2006 (T11, pp.98-118), a section 309(2) notice dated 8 January 2007 was sent to Mr Vo (T7, pp.55-72). This notice apparently enclosed a copy of the complaint from Mr Bui. That notice, which gave Mr Vo until 12 February 2007 to respond, stated:
We have reviewed all the information we have received and advise you that we are considering cautioning you, or cancelling or suspending your registration. In accordance with section 309(2) of the Act we are writing to advise you of the reasons for this and to invite you to make a submission.
14. Apart from exhibit 14 the Tribunal was not provided with records of the contacts between MARA and Mr Vo after 8 January 2007 and before MARA’s decision was made. According to MARA’s decision record (T5, pp.38-52) MARA apparently received a request from Mr Vo on 13 February 2007 for an extension of time to respond. He was granted an extension until 5 March 2007. As no response was received by that date a representative of MARA called Mr Vo’s office. The representative was told Mr Vo was in court and not available. A message was left for Mr Vo that he should ring MARA and discuss whether or not he would respond to MARA’s notice. Further unsuccessful attempts to contact Mr Vo by telephone were made on 15 March 2007. An email was sent on that date inquiring, again, whether he intended to respond to the notice and advised that a decision could be made by MARA on the evidence it already had before it if Mr Vo did not respond. Mr Vo made contact with MARA on 23 March 2007 and he was granted an extension of time to 11 April 2007 to respond. Mr Vo failed to respond by this date.
15. On 23 April 2007, MARA decided to suspend Mr Vo’s registration for six months and until the conditions described above were satisfied on the basis that Mr Vo had breached clauses 2.11, 2.15, 5.1, 5.2, 5.5, 7.2, 7.4 and 11.3 of the Code.
RELEVANT LEGISLATION
16. Pursuant to subsection 280(1) of the Act a person must be a registered migration agent to give “immigration assistance”. Section 276 of the Act defines “immigration assistance” as follows:
276 Immigration assistance
(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
(c)preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d)representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
(2)For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a)preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
(b)advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c)representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
…
(3)Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:
(a)does clerical work to prepare (or help prepare) an application or other document; or
(b)provides translation or interpretation services to help prepare an application or other document; or
(c)advises another person that the other person must apply for a visa; or
(d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
(4)A person also does not give immigration assistance in the circumstances prescribed by the regulations.
17. Section 303 of the Act provides:
303 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.
…
18. In relation to MARA’s power to suspend a migration agent, section 304 of the Act provides:
304 Period of suspension
(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.
(2)If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.
19. Section 314 of the Act provides that “the regulations may prescribe a Code of Conduct for migration agents” and that agents must comply with the Code. Schedule 2 of the Migration Agents Regulations 1998 contains the Code. The relevant clauses are reproduced later in these reasons.
20. Pursuant to section 311 of the Act, MARA, in considering possible disciplinary action under section 303, “is not bound by technicalities, legal forms or rules of evidence” although it “must act according to substantial justice and the merits of the case”. However, subsection 309(2) of the Act states:
(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.
21. Section 310(2) provides:
(2)If the Migration Agents Registration Authority does not receive a submission, it may decide the matter on the information before it.
ALLEGED BREACHES OF THE CODE OF CONDUCT
22. MARA’s case rested on finding that Mr Vo had breached the Code in eight respects and on these the Tribunal had been asked to make findings. MARA stated that it was not claiming that Mr Vo was not a fit and proper person and the Tribunal had not been asked to make a finding on that matter.
23. Mr Vo disputed that he was providing immigration assistance, as defined by the Act at section 276, in respect of Mr Bui. He said that Mr Bui was not a visa applicant. Further, the work that was done for Mr Bui involved training and assessment.
24. MARA contended that Mr Vo was providing immigration assistance to the relatives of Mr Bui and to Ms Ngo who were visa applicants pursuant to section 5 of the Act. Mr Vo was, according to MARA (Exhibit 9), providing “immigration assistance” as defined by section 276 as:
he used, or purported to use, knowledge of, or experience in, migration procedure to assist them by:
(a) preparing or helping to prepare, the visa application … or
(b) advising the visa applicant … about the visa application …
25. In relation to complaint number 3549, MARA, in its notice of decision, referred to the receipt (T21, p.243) issued to Ms Ngo on receipt of the payment of $2,500 which stated that the money was for “upfront legal fee 50%”. It stated “In fact the money was paid to the Agent for services he was to provide in his capacity as a migration agent, as the retainer agreement stated that the work to be performed was an application for a spouse visa”.
Clause 2.11: Failed to properly display his Migration Agent Registration Number in an advertisement for his services
26. MARA contended that Mr Vo advertised his services as a migration agent in a Vietnamese language publication without including in the advertisement (T10, p.96) his MARN as required by clause 2.11 of the Code which stated, at the relevant time:
2.11A registered migration agent must, when advertising, include in the advertisement:
(a)the agent’s family name; and
(b)the words “Migration Agents Registration Number” or “MARN”, followed by the agent’s individual registration number.
27. The advertisement read in part, as translated on behalf of MARA (T10, p.97):
Regardless wherever you are in the world, we have the way to guide you on education and immigration matters effectively.
…
Solicitors specialised in the difficult services (circumstances) in education, (University) Degrees, Immigration and Skilled Migrants.
28. MARA claimed that the advertisement promoted Mr Vo as a person who offers “immigration assistance” as defined by section 276 of the Act as he presented himself as having knowledge or experience in immigration procedures and was able to assist visa applicants.
29. Mr Vo disputed the accuracy of the translation. He maintained in the hearing, as he had in a letter to MARA dated 24 May 2006 (T19, p.215) in which he first responded to the allegation that he had breached the Code by failing to include his MARN in the advertisement, that the advertisement was promoting “education and training” provided by the College. He said that he had not intended to promote his capacity as a migration agent.
30. Mr Vo stated that the College did assist students to fill out forms for students and advise when visas were needed, but these activities, he submitted, did not constitute immigration assistance, pursuant to subsection 276(3) of the Act. He also said that he had put a proposition to MARA, to resolve the issue in a “practical manner”, by performing this work in future without a fee, but this had not been accepted by MARA.
31. Mr Vo described the advertisement as being a “one off” and agreed that in future any advertisements would display his MARN.
Clause 2.15: Intimidated or coerced one of his clients
32. Clause 2.15 of the Code states:
2.15A registered migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a registered migration agent must not engage in any of the following:
(a) undue pressure;
(b) physical threats;
(c) manipulation of cultural or ethnic anxieties;
(d) threats to family members in Australia or overseas;
(e) untruthful claims of Departmental sanctions;
(f)discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender.
33. MARA contended that Mr Vo’s behaviour towards his client, Mr Bui, constituted “undue pressure” when at a meeting on 15 June 2006 Mr Vo allegedly told Mr Bui that he may get a refund if replacement students were found, and in a conversation on 1 July 2005 he told his client words to the effect “the $5,000 you have paid up front whether you wish to proceed or not is money you would never see again” and that he had “spoken to a group of solicitors and I am allowed to demand another $10,000 from you. My lawyer is the best in New South Wales and no one can beat him”. In so doing, MARA contended he sought to intimidate Mr Bui into not pursuing the issue of a fee refund and had breached clause 2.15 of the Code.
34. Mr Vo denied the claims made against him and queried the standard of proof MARA had applied. He asked why MARA had accepted Mr Bui’s claims at face value when it was only the word of his accuser, who was motivated by the desire to obtain a refund, against his. He said he was a respected person and referred the Tribunal to references written on his behalf. He said that it was the first allegation made against him during the period he had practiced as a migration agent. Mr Vo also contended that he was not performing legal or migration work for Mr Bui, but assessment work relating to qualifications.
35. To the assertion that MARA accepted Mr Bui’s word against Mr Vo’s MARA responded that Mr Vo had been given repeated opportunities to respond, but had not done so. Furthermore, both of his accusers had sworn statutory declarations. They would be accepted as evidence in court. Mr Vo asserted that he had responded in writing to MARA on 25 July 2005. A letter of this date was amongst the T-documents, however, it was addressed to another legal practitioner and not to MARA (T22, pp.265-266). This letter stated that “Mr Bui apparently made certain contradictory and false statements [in the statutory declaration] and this will be dealt with in due course when and where relevant”. Mr Vo also said that he had rung MARA and sent an email on 13 February 2007 (received 11 times by MARA) as well as faxes. Mr Vo explained that his ability to respond to MARA’s allegations had been affected by his personal circumstances. The Tribunal gave Mr Vo the opportunity to call the complainants for his cross-examination, but he declined to do so.
Clause 5.1: Charged a fee for his services which was not reasonable
36. Clause 5.1 of the Code states:
5.1There is no statutory scale of fees. However, a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case.
37. MARA claimed that Mr Vo had breached the Code by charging both his clients, Mr Bui and Ms Ngo, fees which were unreasonable under the circumstances. MARA contended that Mr Vo’s claim that he had worked 40 and 32 hours, respectively, for Ms Ngo and Mr Bui was not reflected in his documentary evidence of invoices, statements or results. In neither case was a satisfactory outcome achieved as the clients withdrew their instructions before the work was completed but Mr Vo claimed to be entitled to retain the payments.
38. MARA referred the Tribunal to an invoice dated 21 May 2005 issued to Mr Bui showing there was an amount of $3,000 outstanding in relation to “Doan’s Skilled Migration” after the $2,500 upfront payment (T22, p.262). The invoice did not indicate what work had been performed. MARA’s notice of decision stated that Mr Vo had given Mr Bui only preliminary advice over one week prior to Mr Bui entering into the retainer agreements and that the client’s file contained no evidence of the work performed by the agent. There was also no evidence of any disbursements made. MARA did not consider that Mr Bui’s relatives’ applications required, as claimed by Mr Vo, 30 or more hours of research, especially given Mr Vo was a migration agent of five or six years standing. MARA estimated that the work undertaken would have taken no more than three to four hours to complete, and that the fees charged were not commensurate with the work he had performed on behalf of his client. MARA referred to the retainer/cost agreement entered into with Mr Bui on 12 May 2005 which referred to the performance of “legal research” but it was clearly immigration assistance Mr Vo was providing and thus covered by clause 5.1 of the Code. As indicated above, MARA was in no doubt that the work Mr Vo was retained by Mr Bui to perform immigration assistance.
39. The Tribunal notes that the invoice referred to above stated “to our cost of acting for you and migration advice as per our fixed cost agreement dated 16 May 2005”.
40. The two invoices issued to Ms Ngo by Mr Vo (T19, pp.212-213) appear to show that Ms Ngo paid $3,500 “upfront” in two instalments on or about 25 June 2005 and 15 February 2006 pursuant to the retainer agreement signed on 12 May 2005. That agreement, MARA stated, indicated Mr Vo was retained in his capacity as a migration agent by Ms Ngo to provide immigration advice and assistance with a spouse visa. Neither invoice indicated what work had been performed by Mr Vo. According to MARA, Mr Vo had indicated that 40 hours of work was performed on Ms Ngo’s behalf. As in the case of Mr Bui, MARA contended this was excessive.
41. Mr Vo claimed that he had charged his clients $5,000 on a fixed fee basis. He explained that no time had been recorded because of the fixed fee agreement.
42. In relation to Mr Bui, Mr Vo said that he had provided free migration advice on whether or not the proposed visa classes were appropriate for Mr Bui’s relatives. Mr Vo told the Tribunal that as Mr Bui’s relatives were seeking permanent residency in Australia on the basis of skilled migration, he had to assess demand for particular skills over the next five years. This he said, involved internet research and studying federal government advices on future job prospects. He said he advised Mr Bui three or four times for about one and half hours on each occasion. Dr Le, according to Mr Vo, created two volumes of material to present to “recognition authorities”. Dr Le, his subcontractor, could verify that he had spent over 40 hours providing research which was in addition to Mr Vo’s work. In all, he claimed over 100 hours of work was performed involving reading over 2,000 pages of documents from the Department of Employment and Workplace Relations, examining their training packages which changed annually, migration regulations etc. Mr Vo said he paid Dr Le $4,500 for his work.
43. Mr Vo claimed that “the work/charges may not be deemed to be exclusively solicitor work costs, nor migration work costs, but rather the assessor work costs for planning, documenting and laying down evidence and representing them to an authority of competent jurisdiction”. He said that $2,500 for each applicant for preliminary research, assessment and advice was not excessive in the circumstances. Even if the advice was inaccurate, which he did not concede, it did not mean that Mr Bui should get a refund, relying on Issacs v Cachia (1985) 3 NSWLR 366 as authority for this proposition. He said the work was done in “good faith”, as agreed with Mr Bui, and for which Mr Bui had promised to pay $50,000.
44. Mr Vo asserted that MARA was not competent to determine costs for the range of services he had provided. He noted that educational assessments were done on a sub-contract basis by Dr Le who also codified training packages for his clients. Mr Vo asserted that this was not normal activity for most migration agents but it was a core activity for his combined businesses and, consequently, was not “immigration assistance” as claimed by the MARA.
45. In respect to Ms Ngo, Mr Vo responded that $3,500 was very cheap for the work performed for her and the work done was worth far more. He said Ms Ngo had come to see him more than 10 times, probably, 20 times, each visit taking between half an hour and three hours.
clause 5.2: Failed to notify a client of a change in the cost of providing legal services
46. The Code states at clause 5.2:
5.2 A registered migration agent must:
(a) before starting work for a client, give the client:
(i)an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii)an estimate of the time likely to be taken in performing a service; and
(b)as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and
(c)give the client written confirmation of the terms of the service to be rendered; 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.
47. MARA referred to the terms of the retainer/cost agreement which Mr Vo entered into with Ms Ngo on 12 May 2005 (T10, pp 231). Clause 2 referred to fees, costs and disbursements and an “upfront payment” of $5,000. Subsequently, on 15 February 2006 an authority to proceed was signed by Ms Ngo which included an additional charge of $300 per hour for services (T19, pp.194-195). MARA contended that Mr Vo had not provided his client with any written notice in advance, accounting for the change to the estimated cost of his services. He was, in effect, charging twice for the same service as the authority to proceed related to the same services as those in the original retainer/cost agreement. Consequently, MARA said that Mr Vo had breached clause 5.2(d) of the Code.
48. Mr Vo contended that of the $5,000 upfront charge only $3,500 had been claimed for work completed. Mr Vo claimed that if the work had exceeded $5,000 he would have had the discretion to charge an additional $300 per hour. However, he hadn’t charged his client $5,000 only $3,500.
49. Mr Vo stated that if he completed the bridging visa application (as a precursor to the other applications) for Ms Ngo and the work exceeded 30 hours then he would be entitled to charge on an hourly basis. In Ms Ngo’s case he had offered her a refund if she was experiencing financial hardship, but his client hadn’t asked for a refund on this basis.
Clause 5.5: Failed to give a client a statement of services setting out work completed
50. Clause 5.5 states:
5.5A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:
(a)the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and
(b) a statement of services must set out:
(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and
(c)a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:
(i)made the payment to the agent for giving immigration assistance; and
(ii)did not receive a statement of services before making the payment; and
(iii)does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.
51. MARA submitted that Mr Vo failed to provide to Mr Bui and Ms Ngo a fully itemised account of work he had performed. MARA’s decision noted that the invoices covering the upfront payments paid by Ms Ngo and Mr Bui did not set out particulars of the services performed, nor a charge for each service. Consequently, they failed to meet the requirements for a statement of services covered by clause 5.5(b).
52. Mr Vo stated that he considered the authority to proceed signed by Ms Ngo as a statement of service. This was rejected by MARA.
Clause 7.2: Failed to hold payments from clients in a trust or clients’ account & Clause 7.4: Failed to maintain proper records of transaction into and out of his clients’ account
53. MARA claimed that Mr Vo had failed to hold the “upfront” payments paid by Mr Bui and Ms Ngo in a trust or clients’ account as required by clause 7.2 of the Code which states:
7.2A registered migration agent must hold, in the clients’ account, an amount of money paid by a client for an agreed block of work until:
(a)the agent has completed the services that comprise the block of work; and
(b) an invoice has been issued to the client for the services.
54. It followed from the breach of clause 7.2, according to MARA, that Mr Vo also breached clause 7.4 of the Code which states:
7.4A registered migration agent must keep records of the clients’ account, including:
(a)the date and amount of each deposit made to the clients’ account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b)the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and
(c) receipts for any payments made by the client to the agent; and
(d)copies of invoices or accounts rendered in relation to the account.
55. In MARA’s notice of decision at paragraph 55 it stated:
The Authority’s policy towards migration agents who are also legal practitioners is that a solicitor’s trust account may be maintained to comply with Part 7 of the Code of Conduct, provided that the account is operated in a way that is consistent with the requirements in Part 7.
56. MARA told the Tribunal that Mr Vo was operating a complicated business model which included three distinct businesses, but he had no clear trust account procedures covering migration clients, nor did he appear to have any intention of establishing one. There was no evidence that Mr Vo had held the upfront payments, described as “fees” and “professional costs”, in a trust account or his clients’ account until an agreed block of work had been done and an invoice issued.
57. Mr Vo had provided MARA with bank statements of a “Solicitors Trust Account” for “Australasia Legal and Migration Services” for the period 1 July 2005 to 28 February 2006 (T17, pp.166-173). The opening balance was $3,688.05. MARA noted that only one transaction took place over the period 1 July 2005 to 28 February 2006, this was a deposit of $5,000 on 30 September 2005. This was the amount received from Mr Bui, deposited after Mr Bui had withdrawn his instructions and after Mr Vo had applied to the Supreme Court of New South Wales for an assessment of costs seeking an order he be paid the outstanding $5,000 upfront payment.
58. In his letter to MARA dated 24 May 2006 (T19, pp.214-216) Mr Vo placed reliance upon clauses 1.9 and 7.7 of the Code and subsection 254(1) of the Legal Profession Act 2004 (NSW) (“the LP Act”). Clause 1.9 of the Code states:
1.9The Code is not intended to displace any duty or liability that a registered migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in the light of this principle.
59. Clause 7.7 of the Code reads:
7.7Nothing in clause 7.1, 7.1A, 7.2, 7.3, 7.4 or 7.6 affects the duty of a registered migration agent, who is also a legal practitioner and who acts in that capacity, to deal with clients’ funds in accordance with the relevant law relating to legal practitioners.
60. Subsection 254(1) of the LP Act states:
254 Certain trust money to be deposited in general trust account
(1)Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless:
(a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, …
61. Mr Vo submitted that the effect of these clauses of the Code and the provision of the LP Act was to relieve him from complying with the Code because he was a legal practitioner and that subsection 254(1) of the LP Act permitted him to provide a statement in his retainer agreement and on receipts to the effect that the client authorises that any “non refundable” upfront payment made by the client need not be deposited into a trust account and may be used for any purpose and “the clients shall waive the Firm from all legal requirements, if any”.
62. MARA contended that irrespective of whether the migration agent was also a legal practitioner, a migrant agent was obliged to comply with the obligations under the Code with respect to financial duties. MARA contended that Mr Vo was under a misapprehension about the effect of clause 7.7 of the Code. Clause 7.7 is concerned with the duties imposed upon a legal practitioner in relation to a client’s money when acting in that capacity, that is, as a legal practitioner. MARA contended that Mr Vo may be able to rely upon the LP Act when acting as a legal practitioner, but not when he was acting as a migration agent when he was subject to the standards imposed by the Code. In the cases of both Ms Ngo and Mr Bui, Mr Vo was giving immigration assistance and therefore acting in his capacity as a migration agent. MARA stated that it believed Mr Vo was trying to contract out of the Code for his own benefit and this was unacceptable.
63. Reference was made by both parties to a report conducted by the Law Society into Mr Vo’s accounting arrangements (annexure A of Exhibit 9). Mr Vo stated that it should not be taken into account by the Tribunal in reaching its decision because it did not relate to the complainants, Ms Ngo and Mr Bui. He also said that it did not concern his practice as a migration agent. MARA’s position was that it was not relying upon the findings of the investigation by the Law Society to establish Mr Vo’s breach of the Code, but the report showed serious systemic issues regarding his trust account procedures indicating Mr Vo’s failure to comply with the LP Act which he had relied upon.
64. Given MARA’s position about concerning his financial practices, Mr Vo said he would “probably amend” them. He said he had tried to comply. He didn’t think he was grossly in breach of the Code as he had relied in good faith upon clause 1.9 and subsection 254(1) of the LP Act. He said that the arrangements were meant to be to his clients’ advantage and acknowledged the difficulties posed by trying to operate a “one stop shop”.
65. Mr Vo referred to his proposal to in the future not charge his clients for migration advice and this should enable him to avoid using a trust account as he would be offering a “free service” and no funds would change hands. He would only handle the migration issues of clients who were candidates for his education assessment and training programs through the College and only give limited migration assistance to other clients if he had time.
66. The Tribunal pointed out to Mr Vo that his assertion that he would receive no disbursements requiring the use of a trust account was at odds with Exhibit 8 (p.3) which contains a list of course fees and disbursements. He replied that they were all disbursements, not fees, and had to be accounted for, but he failed to explain how these funds should be held.
Clause 11.3: Failed to include an adequate statement about the Code of Conduct and its purpose and existence in his standard agreement
67. Clause 11.3 states:
11.3Each contract made between a registered migration agent and a client must:
(a)include a statement about the existence and purpose of the Code; and
(b)guarantee that the client can obtain a copy of the Code, on request, from the agent.
68. After receiving Mr Bui’s complaint about Mr Vo, MARA had requested that he produce a number of documents relevant to his practice as a migration agent. Mr Vo’s response on 8 September 2005 raised a number of additional issues which led MARA to open a new complaint file (3509) on 20 February 2006. One aspect of the complaint was that Mr Vo had failed to provide his clients with information required by the Code in his template service agreement. On 23 March 2006, Mr Vo was requested to provide MARA with an amended template contract containing a statement about the purpose and existence of the Code as required by clause 11.3.
69. According to MARA, the amended template agreement provided by Mr Vo under cover of a letter dated 27 April 2006 did not include an adequate statement about the purpose and existence of the Code and did not guarantee that a client could obtain a copy from the agent. MARA made particular note of the fact that Mr Vo had handwritten in the margin of the agreement “The Firm warrants that” with an arrow indicating this phrase should be inserted before the words “The Client may request to have a copy …” and did not consider that this was evidence Mr Vo’s standard contract contained the required guarantee. MARA also took issue with the fact that the agreement described the intention of the Code as to “regulate the conduct of registered migration agent”. MARA referred to clause 1.10 of the Code which sets out all the aims of the Code.
70. Before the Tribunal Mr Vo contended that he had “complied substantially” with MARA’s intent and he had referred to the Code in the contract. He was willing to make the necessary amendments to comply with MARA’s requirements. MARA acknowledged that over the period of the hearing Mr Vo had endeavoured to find a form of words which would meet MARA’s requirements and it was willing to work with Mr Vo to develop a suitable text. A new version of the contract presented at the Tribunal (Exhibit 7) was still not adequate because in relation to the purpose of the Code it stated the purpose was to “regulate the conduct of the migration profession, amongst other things”. The Tribunal advised Mr Vo to act expeditiously in working with MARA to amend his contract.
MITIGATING CIRCUMSTANCES
71. MARA’s Notice of Decision (T2, pp.4-17) and “MARA Decision Record” (T5, pp.38-54), which are similar although not identical, both stated that “there were no mitigating factors put forward by the Agent”.
72. Mr Vo submitted to the Tribunal as part of his evidence a medical report which stated that his wife was diagnosed with breast cancer in December 2004 and that he had informed MARA of her condition. He also stated that over the period of her illness he had been required to assist her on a daily basis as well as look after their young daughter and elderly mother-in-law. His domestic situation had contributed significantly to his inability to maintain his business interests and he was suffering from financial hardship and was now on the brink of bankruptcy. For this reason he needed to re-activate his migration practice and other business interests as soon as possible. The College was on the brink of closure because he couldn’t afford the rent. Mr Vo said during the hearing that his personal problems had left him physically, mentally and emotionally exhausted.
73. Mr Vo submitted a letter to MARA dated 6 March 2007 which according to an attached email was received by MARA on 23 March 2007 (Exhibit 14). This letter requested an extension of time on account of his wife’s illness and his other domestic difficulties. This is the only record in the documents before the Tribunal which demonstrated that MARA was on notice, before it made its decision, of Mr Vo’s personal difficulties.
74. Mr Vo was concerned that MARA had failed to make allowance for his family problems which had had a serious impact on his business interests, his capacity to conduct them efficiently and to respond in a timely manner to MARA’s demands. Consequently, his six month suspension had been excessive and he should have received a caution not suspension; MARA should have given him timely warning of his possible suspension.
75. Mr Vo noted that over his seven years as an agent there had been no previous complaints made against him. He said that the references he provided to the Tribunal showed he was respected in the community.
76. Mr Vo admitted that he had been in a “grey area” of the law but did not accept that he had knowingly been in breach of the law. Consequently, MARA could have made a more “progressive” decision. It had failed to warn him, and thus he had not been given the opportunity to correct his errors.
77. While MARA claimed to have acted in the public interest, Mr Vo said that it had failed to consider his offer to provide free migration advice for clients of his College and thus help make it a viable business. Mr Vo suggested this would be for the “public good” and no other migration agent would offer their services for free.
78. MARA responded that it had no issue in regard to Mr Vo’s claims about his wife’s serious health problems over recent years and his other family obligations, and accepted that these were mitigating circumstances. However, if he wished to operate as a migration agent it was submitted that he would be required to meet the mandatory terms of the Code.
NATURAL JUSTICE AND PROCEDURAL FAIRNESS ISSUES
79. In his application, and during the hearing, Mr Vo raised the issue that he had been denied procedural fairness and natural justice in relation to MARA’s handling of the investigation and subsequently.
80. Before the Tribunal Mr Vo questioned the standard of proof applied by MARA when assessing the evidence of his accusers Ms Ngo and Mr Bui.
81. MARA responded that it was particularly concerned that Mr Vo be afforded natural justice as required by section 309 of the Act. In regard to the notice of intention sent to him on 8 January 2007 Mr Vo had been given numerous extensions of time in which to respond and there was no issue of there being a denial of natural justice here.
82. Mr Vo stated that MARA ignored compelling circumstances beyond his control caused by his wife’s serious illness and the need to look after her and their child.
83. Mr Vo accused MARA of failing to present all the documents on his files which he had made available and queried how MARA could reach conclusions without studying his documents.
84. MARA claimed that the documents filed in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 contained a full record of all the relevant documents the delegate considered and that Mr Vo had been given the opportunity to review them and submit additional material if he wished. MARA did not consider that the complete files were relevant. Consequently, as far as MARA was concerned, there had been no breach of procedural fairness nor natural justice.
85. The Tribunal asked Mr Vo whether there were additional documents of relevance which he thought MARA was still holding. He replied that at this stage in the enquiry the production of additional documents by MARA was not necessary.
SANCTION
86. Mr Vo requested the Tribunal to set aside MARA’s decision. In his application, he described the sanction as disproportionate. Mr Vo said that he had offered to meet MARA’s training requirements and complete four CPD points including ethics and file management by 30 October 2007, but MARA had not accepted his proposal. Mr Vo stated that he wanted to attend a “real activity” with structured courses and set timings. He had suggested a course which commenced on 15-16 September 2007 which would credit him with 10 CPD points but he needed MARA’s agreement (Exhibit 5).
87. Notwithstanding Mr Vo’s mitigating circumstances, which MARA acknowledged in relation to the illness of his wife and his family responsibilities, MARA considered that the issues were sufficiently grave to suspend Mr Vo’s registration as a migration agent for a period of six months from 23 April 2007 and until certain conditions were met in accordance with subsection 303(1)(b) of the Act as it was responsible for maintaining proper standards in the profession and to protect consumers. MARA’s notice of decision made particular note of the fact that Mr Vo was dealing with “non-English speaking clients that were in some respects vulnerable”.
88. The conditions set by the MARA were specifically directed at improving Mr Vo’s knowledge by completing additional training through professional development activities in financial management and ethics to improve his handling of clients’ money. MARA advised the Tribunal that it would be ready to consider any proposal from Mr Vo in this regard. The reason why Mr Vo’s proposed course was not acceptable to MARA was that it did not contain a financial component.
FINDINGS
89. The preliminary issue for consideration is whether Mr Vo was providing immigration assistance. The Tribunal has taken careful note of section 276 of the Act which defines “immigration assistance” and notes that the section refers to persons using knowledge or experience in migration procedures to assist a visa applicant by:
(a) preparing, or helping to prepare, the visa application….or
(b) advising the visa applicant….about the visa application.
90. On the basis of the following evidence, the Tribunal is satisfied that in his advice to Mr Bui and Ms Ngo Mr Vo was providing immigration assistance.
91. According to Mr Bui’s statutory declaration dated 7 July 2005 (T25, p294-296) his relatives were ultimately seeking to apply for permanent residency in Australia and Mr Vo had been instructed to prepare a student visa for Mr Bui’s brother living in Vietnam and to transfer the student visa of Mr Bui’s cousin from a Master of Engineering course, which he was currently undertaking, to a TAFE electricians course so that he could obtain Australian residency.
92. In regard to Mr Vo’s client Ms Ngo, the retained cost agreement indicated that Mr Vo was retained to “conduct all necessary legal research and advise the Client generally in respect to Spouse migration to Australia, if any” and “to apply for a spouse visa upon disclosure by the Client that Ms Ngo has never been refused or cancelled a visa and that she is pregnant” (T21, pp.231-234).
93. I note Mr Vo’s concerns about procedural fairness and natural justice. An examination of the T-documents provided by MARA raises a possibility that he was not informed of Mr Bui’s complaint immediately following its receipt by MARA. He was informed somewhat later (8 January 2007), the complaint having been made in July 2005. At the hearing, the Tribunal gave him repeated opportunities to call witnesses and produce further documents. Although Mr Vo declined to call any witnesses the Tribunal had before it a large volume of documents tendered by Mr Vo.
94. I now turn to each of the alleged breaches of the Code. In proceedings of this nature it been accepted by this Tribunal (see for example, Re Altintas and Migration Agents Registration Authority [2004] AATA 978; Re Kazi and Migration Agents Registration Authority [2006] AATA 42) that the relevant standard of proof is that described by Dixon CJ in the decision of Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Clause 2.11: Failed to properly display his Migration Agent Registration Number in an advertisement for his services
95. Although Mr Vo omitted to include his MARN on the advertisement he did identify himself as a solicitor and as such is entitled to provide immigration legal assistance irrespective as to whether or not he is a registered migration agent. The Tribunal has given weight to Mr Vo’s claim that he acted in “good faith” because of the varied nature of his business interests which span services including the law, training, education and migration advice.
96. The Tribunal also noted that Mr Vo has agreed in future that the Code must take precedence in all his activities which may include an aspect of migration advisory work. Consequently, in future his advertisements will include his MARN.
97. The Tribunal finds that although Mr Vo was in technical breach of clause 2.11 of the Code it was an inadvertent error.
Clause 2.15: Intimidated or coerced one of his clients
98. The Tribunal has taken into account MARA’s evidence which comprised a statutory declaration signed by Mr Bui which formed the basis of its claim that Mr Vo had breached clause 2.15 of the Code. Mr Vo’s denied these claims but did not provide the Tribunal with any additional evidence in support of his claims and did not take up the opportunity which the Tribunal offered him to call Mr Bui to give evidence before the Tribunal. The Tribunal has taken account of the evidence given by Mr Vo that in his experience as a migration agent there is a tendency for some clients, for whatever reason, to try and reduce the fees for which they contracted to pay. Despite this, the Tribunal has given greater weight to MARA’s evidence than that of Mr Vo and had concluded that Mr Vo’s conduct towards Mr Bui did constitute undue pressure and was in all probability designed to dissuade Mr Bui from proceeding to seek a refund of fees paid.
99. The Tribunal has also considered Mr Vo’s claim, which it rejects, that MARA should not have given Mr Bui’s and Ms Ngo’s evidence greater weight than his. It supports MARA’s defence that the complainants provided statutory declarations which are accepted as evidence in a court of law and that he was given the opportunity to respond. Furthermore, the Tribunal gave weight to the fact that when it invited Mr Vo to call the complainants to give evidence which he would then have the opportunity to refute before the Tribunal, he declined the offer.
Clause 5.1: Charged a fee for his services which was not reasonable
100. The Tribunal took note that the Act does not provide for a designated scale of fees which migration agents should follow. Consequently, in determining fees there is an element of “buyer beware” tempered, no doubt, by the level of competition in the migrant advisory market.
101. Mr Vo stated that his normal “upfront” fee for his services was $5,000 which could be increased, but evidently not decreased, depending upon the level of costs involved in doing additional work. He claimed that $5,000 generally equated with about 40 hours work. He also claimed, although his documentary evidence did not appear to confirm his claim, that he always took a humane approach towards clients who were facing financial hardship. The Tribunal noted that he had offered to refund Ms Ngo $1,000, but she refused.
102. The Tribunal also took note of MARA’s contention that it was not criticising Mr Vo for the quantum of his fees but rather because he had not produced results which were commensurate with the cost of his services.
103. Mr Vo provided a substantial body of material evidence to support his claims that he or his sub-contractors did perform considerable work for Mr Bui which was well in excess of the $5,000 originally paid. The Tribunal has given weight to this evidence.
104. On the other hand, MARA failed to address, to the Tribunal’s satisfaction, Mr Vo’s claims and did not demonstrate how Mr Vo’s costs differed significantly from other migration agents doing similar work, with or without the benefit of sub-contractors. The Tribunal has concluded that MARA’s claim that the fees charged to Mr Bui and Ms Ngo were not reasonable has not been made out to its satisfaction.
Clause 5.2: Failed to notify a client of a change in the cost of providing legal services
105. The Tribunal noted that having agreed to perform his services for Ms Ngo for $5,000, as provided in the retainer/cost agreement, Mr Vo then got Mrs Ngo to sign an authority to proceed which gave him the capacity to charge on an hourly basis for the same work and without notice.
106. Mr Vo’s claimed that although the original agreement was for an upfront fee of $5,000 he had only claimed initially $3,500 and that had the actual work exceeded $5,000 he would have had the discretion to charge an additional $300 per hour. The Tribunal did not see evidence where Mr Vo advised Ms Ngo is advance of this arrangement.
107. Consequently, the Tribunal is satisfied that there is insufficient evidence to convince it that Mr Vo did provide written advice to his client of any change in the cost of his services in accordance with clause 5.2 of the Code. Consequently, he was in breach of the Code.
Clause 5.5: Failed to give a client a statement of services setting out work completed
108. On the documentary evidence provided by Mr Vo and MARA, the Tribunal is not convinced that Mr Vo provided his clients Ms Ngo and Mr Bui with a statement of services which set out the work completed. Consequently he was in breach of clause 5.5 of the Code.
Clause 7.2: Failed to hold payments from clients in a trust or clients’ account & Clause 7.4: Failed to maintain proper records of transaction into and out of his clients’ account
109. The Tribunal does not accept Mr Vo’s contention that because he is both a solicitor and a migration agent that the LP Act gives his role as a solicitor precedence over that as a migration agent and thus the Act takes precedence over the Code in so far as it refers to the need to place funds of clients in a clients’ account or trust account.
110. The Tribunal noted that Mr Vo has agreed that if there is a conflict in future, that the Code must take precedence, and he would change his procedures to meet MARA’s requirements. The Tribunal believes that the evidence as to whether he acted in “good faith” or out of self interest is more equivocal.
111. In making findings in relation to these alleged breaches of the Code the Tribunal did not find it necessary to place any reliance on the Law Society’s report.
112. The Tribunal finds that Mr Vo has contravened clause 7.2 of the Code in his failure to place clients funds in a trust account.
113. On the basis of the evidence submitted by Mr Vo, the Tribunal is also not satisfied that he maintained proper records of his financial dealings with Mr Bui and Ms Ngo and was thus in breach of clause 7.4 of the Code.
Clause 11.3: Failed to include an adequate statement about the Code of Conduct and its purpose and existence in his standard agreement
114. The Tribunal accepts that there was a technical breach of the Code in that the original and amended template contracts provided by Mr Vo did not contain an adequate statement about the existence and purpose of the Code, nor did it guarantee that clients could obtain a copy of the Code on request from the Agent. However, the Tribunal is satisfied that Mr Vo acted in “good faith” and did, both before and during the hearing, endeavour to find a suitable formulation which meets MARA’s requirements.
Sanction
115. It was accepted by the Tribunal in the matter of Re Griffiths and Migration Agents Registration Authority [2002] AATA 247 “that the object of disciplinary proceedings in relation to professional people is to protect the public and to maintain proper standards in the relevant profession and not to take action by way of punishment”.
116. Sanctions can only be imposed when the Tribunal has been satisfied of one of the matters under subsection 303(d)-(h) of the Act. The Tribunal is not satisfied that Mr Vo conducted his professional activities in accordance with the standards expected of migration agents under the Act and breached clauses 2.11, 5.2, 5.5, 7.2, 7.4 and 11.3 of the Code.
117. In considering the appropriate sanction the following factors referred to by Senior Member Penglis in the matter of Re Narayanan and Migration Agents’ Registration Authority [2006] AATA 353 at paragraph 132 provide useful guidance:
•The nature of the professional’s breach, particularly whether the professional is acting in good faith during the commission of the breach
•whether there were any factors that were beyond the professional’s control and could have reasonably contributed to the professional’s breach;
• the professional’s willingness to accept that a breach may have occurred;
• the professional’s efforts to rectify or mitigate the effect of the breach, where possible;
• whether the client sustained any loss as a result of the professional’s breach;
• the professional’s actions, if any, to compensate the client for any loss arising out of the possible breach;
• the professional’s record of prior disciplinary breaches.
• the professional’s community and professional reputation
• the extent to which any sanction may be harsh, unjust or oppressive in the circumstances taking into account the extent to which such a sanction would affect the professional’s financial earning capacity and livelihood;
• the professional’s co-operation with the disciplinary authority;
• whether a sanction, if any, would deter other professional from similarly breaching their duties to a client; and
• whether a sanction, if any, will ensure that the public’s confidence in the professional’s industry will be maintained.
118. In its findings, the Tribunal has found that some of the breaches were of a technical nature and that Mr Vo had acted in “good faith”. Mr Vo did admit that he was operating in a “grey area” in some respects and made some attempts to address MARA’s concerns. He provided references vouching for his good character but the Tribunal has discounted these as they predated the complaints to MARA.
119. The Tribunal has given consideration to Mr Vo’s offer to MARA that he would be willing to provide free migration services to the clients of his related businesses provided that he could avoid using a Trust Account structure for his accounts. The Tribunal is satisfied that this is simply a ruse to get around the requirements of the Act. Furthermore, it noted that in his evidence Mr Vo stated that he would only provide immigration assistance outside his preferred clients “if he had time”. The creation, in effect, of two classes of clients whose funds would be treated differently is unacceptable to the Tribunal and contrary to the spirit and intent of the Act which clearly requires the clients’ funds be placed in a Trust Account.
120. The Tribunal has given careful consideration to the mitigating circumstances proffered by Mr Vo as reasons why he was unable to respond to MARA’s requests for information earlier and for breaches of the Code. The Tribunal concurs with MARA’s view that as a migration agent, under the Act Mr Vo had no option but to meet the requirements of the Code of Conduct. The Tribunal notes that many of the breaches could have been avoided if there had been proper systems established, for example, handling clients’ payments, issuing statements of service etc.
121. The finding that Mr Vo breached clause 2.15 of the Code represents a serious departure from the standards expected of a migration agent, although the Tribunal notes that MARA did not make a finding, nor seek the Tribunal to make a finding, that Mr Vo was not a person of integrity or is otherwise not fit and proper person to give immigration assistance.
122. Senior Member Dwyer stated in the decision of Re Altintas and Migration Agents Registration Authority [2004] AATA 978 at 159:
A suspension could be an appropriate sanction in two situations. The first is where a person has been found to be not a fit and proper person to give immigration assistance, but there is reason to believe that during a period of suspension, that circumstance will change, for example if he or she studies in an area where his or her knowledge has been found to be deficient. The second is where the person has not been found not to be a fit and proper person to give immigration assistance, but there are serious findings of concern about the person’s breaches of the Code. In such a situation it may be considered that a period of suspension will impress upon the person the necessity to improve his or her conduct and practices as to compliance with the Code…
123. The Tribunal considers that a period of suspension is appropriate in the circumstances although since the Tribunal has not upheld all of the alleged breaches it considers that the suspension should be lifted immediately. The Tribunal considers that the conditions specified below which are to be fulfilled by Mr Vo before he can resume practicing as a migration agent are necessary and appropriate to protect clients and maintain the standards of migration agents.
DECISION
124. 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.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member
Signed: .............[sgd]...................................................................
AssociateDates of Hearing 22 and 23 August 2007
Date of Decision 15 October 2007
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms A Linacre, Clayton Utz
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