Wadood and Migration Agents Registration Authority - [2023] AATA 1322

Wadood and Migration Agents Registration Authority [2023] AATA 1322 (23 May 2023)
Division:GENERAL DIVISION
File Number: 2021/2829
Re:Abdul Wadood
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:23 May 2023
Place:Melbourne

1. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review.
2. In its place, the Tribunal decides –
(a) The registration of Mr Mohammed Silmy Abdul Wadood as a registered migration agent is suspended under ss 303(1)(b) of the Migration Act 1958 (‘the Act’)
(b) The period of suspension under s 304(1)(a) of the Act is from 13 April 2021 to 12 December 2023, subject to satisfying the condition in paragraph (c).
(c) A condition for the lifting of the suspension under s 304(1)(b) of the Act is that Mr Wadood complete courses as determined and directed by the Migration Agents Registration Authority (‘the Authority’) in (i) obligations to clients and (ii) record- keeping
(d) If Mr Wadood has not completed courses to the satisfaction of the Authority by 12 December 2023, the suspension period will continue until the date on which the Authority is satisfied that he has.
...............................[SGD].........................................
Senior Member D. J. Morris
Catchwords
MIGRATION – regulation of migration agents – migration agents registration authority – applicant was a registered migration agent - applicant breached Code of Conduct – applicant suspended from operating as migration agent for five years – applicant sought review by Tribunal – applicant concedes breaches – range of sanctions available – what sanction best matches improper conduct of applicant – nature of conduct – whether there has been pattern of misconduct – Tribunal satisfied of breaches of Code of Conduct – significant failings in relation to a client but no evidence of pattern of misconduct – cancellation decision under review set aside and decision substituted that applicant’s registration be suspended for set period – conditions apply to lifting of suspension
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Migration Regulations 1994
Cases
Kraues and Migration Agents Registration Authority [2018] FCA 664
Shi and Migration Agents Registration Authority (1005) 40 AAR 397
VBN and Australian Prudential Regulation Authority (2006) 92 ALD 259
Secondary Materials
Code of Conduct for Registered Migration Agents
Migration Agents Registration Authority Procedural Instruction – Working with the Migration Advice Industry, Appendix A
REASONS FOR DECISION
Senior Member D. J. Morris
23 May 2023

Mr Mohammed Silmy Abdul Wadood was a registered migration agent (MARN 1570930). On 13 April 2021 the Migration Agents Registration Authority (‘MARA’) cancelled his registration under s 303(1)(a) of the Migration Act 1958 (‘the Act’).
The cancellation decision followed a finding by MARA that the Applicant had engaged in conduct contrary to his professional obligations under the Code of Conduct for Registered Migration Agents (‘the Code’). Where a migration agent’s registration has been cancelled under s 303, s 292 of the Act stipulates that the person must not be registered within five years of the cancellation.
The Applicant has asked the Tribunal to review the decision to cancel his registration as a migration agent, as he is entitled to do under s 306 of the Act.
HEARING
A hearing was held on 21 March 2023. The Applicant was represented by Mr Christopher Levingston of Christopher Levingston & Associates, lawyers. MARA was represented by Mr Adam Cunynghame, solicitor of Sparke Helmore Lawyers. Mr Wadood gave evidence and was cross-examined.
The Tribunal admitted into evidence the following documents:
(a) Volume of documents lodged under s 37 of the Administrative Appeals Tribunal Act1975 (‘TD’) – Exhibit R1;
(b) Statutory declaration of Mr Adam Cunynghame, declared on 17 March 2023 with annexure – Exhibit R2; and
(c) Witness statement of Mr Mohammed Ali Umer Lebbe, dated 29 October 2021 – Exhibit R3.
The Tribunal also had regard for the Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) and the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’).
AGREED FACTS
Mr Levingston told the Tribunal that the Applicant does not dispute the factual matters outlined by MARA in the RSFIC.
The Applicant has asked the Tribunal to review his cancellation as a migration agent, as he is entitled to do under s 306 of the Act.
The cancellation followed a complaint made by Mr Mohammed Lebbe dated 20 February 2019. Mr Lebbe’s complaint was given to the Applicant by way of a notice under s 308 of the Act on 5 March 2020. Mr Wadood made certain responses to MARA. On 26 June 2020 MARA sent a further s 308 notice to Mr Wadood and invited him to respond. Mr Wadood responded on 3 August 2020.
On 12 October 2020 MARA sent a s 309 notice to Mr Wadood advising that it was considering cautioning, or suspending, or cancelling his registration under s 303(1) of the Act. On 16 November 2020, Mr Wadood responded to the s 309 notice. On 13 April 2021 the Applicant was advised of the cancellation decision and a finding that he had breached several provisions of the Code.
The complaint
Mr Lebbe entered into an agreement with the Applicant for migration services in relation to his application for a Skilled (Subclass 457) visa. The agreement provided that he would be charged a maximum amount of $15,000. He was in fact charged $22,000.
Mr Lebbe believed he would be employed by a Brumby’s Bakery franchise in Melbourne. He later found out that his sponsor was in fact another bakery business, called Publique Pty Ltd (‘Publique’).
The fees Mr Lebbe paid for the migration services were deposited into various bank accounts in Sri Lanka (where Mr Lebbe resides) and not into an account in the Applicant’s name.
On 30 June 2017 a Standard Business Sponsor application was lodged for Ankush Chhabra Pty Ltd and Publique Pty Ltd, trading as Publique Bakery (‘Publique’). The same day Publique lodged an application nominating Mr Lebbe for the skilled visa. On 18 October 2017 the sponsorship nomination was approved.
On 28 February 2018 the skilled visa application was lodged for Mr Lebbe in relation to the nomination of him by Publique. On 21 August 2018 the nomination application was refused. The same day, Mr Lebbe was invited to comment on the adverse information that his sponsor did not have an approved nomination or to withdraw his nomination. On 21 September 2018 Mr Lebbe withdrew the application.
The Applicant was the registered migration agent representing the sponsorship, nomination, and visa applications.
On 29 June 2017 an application was lodged by Brumby’s Bakery nominating Mr Wadood’s sister-in-law for a Skilled (Subclass 457) visa. On 23 February 2018 the nomination was approved.
On 30 June 2017 an application for a skilled visa was lodged for the Applicant’s sister-in-law in relation to the nomination by Brumby’s. Mr Wadood’s brother was included in the application as a dependent applicant.
On 21 August 2018 Mr Lebbe’s nomination was refused as the qualification and work experience requirements for the position were not met.
Mr Wadood was the registered migration agent representing both of the nomination and visa applications.
The legislative regime
A person may apply to be registered as a migration agent under s 288 of the Act. MARA is required by s 289 of the Act to enter the name of an approved person in the Register unless prohibited by Part 3 of the Act. Section 290(1) relevantly provides:
An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a) the applicant is not a fit and proper person to give immigration assistance; or
(b) the applicant is not a person of integrity; or
…
Section 290(2) provides that in considering whether it is satisfied that an applicant is not ‘fit and proper or not a person of integrity’, the MARA must take into account the extent of the person’s knowledge of migration procedure and any conviction of the applicant for a criminal offence relevant to the question of whether the person is not a fit and proper person to give immigration assistance or a person of integrity. Section 290(2)(h) provides that MARA must take into account any other matter relevant to the person’s fitness to give immigration assistance.
The Respondent submitted (and the Applicant accepted) that there is no onus on MARA to establish that its decision was justified (citing Re: Shi and Migration Agents Registration Authority (2005) 40 AAR 397) but at the same time, if the Tribunal makes findings of facts, it must be persuaded of those facts (citing Re: VBN and Australian Prudential Regulation Authority (2006) 92 ALD 259 at [235-236]). The Respondent submitted that the question is whether the Tribunal is satisfied on the evidence before it that there have been breaches of the Code and, if so satisfied, the question of penalties then arises.
The above summary of facts was not in contest between the parties.
Respondent’s submissions
The Respondent submitted that Mr Wadood has not complied with the Code and, for the purposes of s 303(1)(h) of the Act, it does not matter how many clauses of the Code have been breached; what is important is that there has been a failure to comply with the Code.
The Respondent submitted that Mr Wadood breached cl 2.1 of the Code by:
a)misleading Mr Lebbe about the outcome of an interview with Brumby’s Bakery;
b)failing to advise Mr Lebbe that he was also acting for a family member (i.e., his sister-in-law) who was competing for the Brumby’s Bakery position;
c)failing to notify Mr Lebbe that a nomination application had been lodged with Publique without his knowledge;
d)charging the costs of the sponsor to Mr Lebbe in breach of r 2.87 of the Migration Regulations 1994;
e)lodging what the Respondent described as a ‘non genuine’ nomination and visa application with Publique without Mr Lebbe’s knowledge;
f)charging Mr Lebbe more than had been agreed; and
g)initially withholding refunded money from Mr Lebbe before later refunding him.
The Respondent noted that Mr Lebbe has submitted a statement to the Tribunal in which he stated that he did not sign a contract with Publique. The delegate had been unable to come to a concluded view about whether he had signed in the absence of an expert opinion about the nature of the signature on the document. Mr Cunynghame submitted that weight should be given to Mr Lebbe’s account, which has been consistent.
The Respondent noted that the Applicant conceded in his ASFIC that there was potential for conflict of interest in acting for his sister-in-law in terms of the outcome of the recruitment process for a baker. The Respondent submitted that Mr Wadood failed to act in the best interests of Mr Lebbe in not informing him of his unsuccessful interview with Brumby’s, applying for the Publique position without Mr Lebbe’s knowledge or consent, failing to inform Mr Lebbe of the conflict of interest with respect of Mr Wadood’s sister-in-law applying for the same job, and not refunding fees in a reasonable time.
The Respondent noted that cl. 2.9A of the Code provides that when communicating with MARA, an agent must not mislead or deceive the Authority, whether directly or by withholding relevant information. Mr Cunynghame submitted that Mr Wadood undertook to provide documents relating to his representation of Publique. He said he would look in his garage and, once they were found, would supply them. He then said they had been misplaced, and did not provide any documents that could reasonably be assumed to exist given his representation of Publique. The Respondent submitted that this amounted to a breach of cl. 2.9A of the Code.
The Respondent submitted that charging Mr Lebbe some $7,000 more than had been agreed amounts to a failure to comply with cl. 5.2(d) of the Code where a client must be given written notice of any material change to the estimated cost of providing a service, and the total cost as soon as the agent becomes aware of the likelihood of a change in the cost occurring.
The Respondent submitted that the failure of Mr Wadood to hold Mr Lebbe’s funds in the clients’ account, an amount of money paid by a client for a block of work until the agent has completed the services and issued an invoice for the services provided. Mr Cunynghame noted that the Applicant conceded that the involvement of third parties in collection and disbursement of funds from Mr Lebbe breached his obligations as a registered migration agent.
Clause 6.1 of the Code requires registered migration agents to maintain proper records that can be available for inspection by MARA on request, including all written communications between the agent and a client and the Department of Home Affairs, and notes of oral communications. The Respondent noted that, in spite of repeated requests, the Applicant was only able to provide some documents relating to the sponsorship nomination by Publique. The Respondent noted that the Applicant conceded his record keeping was “less than satisfactory”.
The Respondent submitted that, in the light of the identified breaches of the Code, Mr Wadood’s conduct supported a finding that he is not a person who is currently fit and proper to give immigration assistance. The Respondent submitted that the Applicant is not a person of integrity or is otherwise not a fit and proper person to give assistance for the purposes of s 303(1)(f) of the Act.
In terms of the appropriate penalty, the Respondent submitted that the decision to cancel Mr Wadood’s registration was the appropriate one in the circumstances, noting that the purpose of the disciplinary powers in the Act related to protection of the public and are not punishment as such, citing Kraues and Migration Agents Registration Authority [2018] FCA 664, at [17] (‘Kraues’).
The Respondent submitted that Mr Wadood’s past conduct indicates that his behaviour poses a significant risk to migration consumers, and that the Tribunal should have regard to a ‘Matrix’ produced by MARA which would categorize several breaches of the Code as ‘major’ and submitted that conduct in this case included dishonesty and substantial financial loss to Mr Lebbe.
The Applicant’s submissions
Mr Levingston told the Tribunal that Mr Wadood acknowledged his conduct overall in relation to the complaint made by Mr Lebbe. He said it was not in dispute that Mr Lebbe paid $22,000 for migration services when he was told that the cost would be between $10,000 and $15,000. He said it was also not contested that the money was paid into a bank account in Sri Lanka.
Mr Levingston said that the primary contact between Mr Wadood and Mr Lebbe was by the social media application ‘WhatsApp’ because it was cheaper than making international telephone calls, and this creates an additional obligation in regard to record-keeping by the Registered Migration Agent.
In the submissions, while Mr Wadood conceded there was an interview between Mr Lebbe and a Brumby’s franchisee, it was denied that Mr Wadood told Mr Lebbe he had been unsuccessful; instead, it was submitted that Mr Wadood told a third-party agent, Ms Fervin, that Mr Lebbe had been unsuccessful. The Applicant submitted:
The overall conduct of the complainant [i.e., Mr Lebbe] was dilatory in that he did not answer telephone calls and he did not respond to emails within reasonable time frames and broke off contact with the Applicant in these proceedings for extended periods of time.
Mr Levingston submitted that although there was a potential for a conflict of interest in Mr Wadood acting for his sister-in-law and introducing her to Brumby’s in respect to her desire for a bakery job because the Applicant had a ‘familial interest’ in the outcome of the recruitment process, there was no actual conflict of interest sufficient to enliven a breach of the Code.
The Applicant noted that the Respondent contended that the nomination of Mr Lebbe and his associated visa application were not genuine applications. In support of this view, the Respondent cited the signed employment contract and the denial by Mr Lebbe that he had signed it; that the Respondent was satisfied that Mr Lebbe did not undergo a recruitment process and that Mr Wadood in preparing and lodging the application and visa papers, was a party to the making of statements that he knew or “believed to be misleading or inaccurate” (in the words of the Respondent’s contentions).
Mr Levingston submitted that there is no evidence which would comfortably lead to a conclusion that the Applicant “knew” or “believed” that he was submitting a nomination and supporting documents including a visa application which were either forgeries or false in a material particular and therefore misleading. Mr Levingston noted that these were serious allegations which could lead to prosecution of Mr Wadood for a breach of s 234 of the Act. Given that, Mr Levington submitted that the requisite evidentiary standard would be that approximating the ‘Briginshaw standard’.
Mr Levingston said that misleading MARA means traversing the obligation of candour and the requirement that the Applicant be a person of honesty, integrity, and diligence. He said that the absence of documentation does not give rise to a breach of cl. 2.9A of the Code but may give rise to a breach of the Applicant’s record-keeping obligations.
In regard to payments made by Mr Lebbe, Mr Levingston submitted that seven payments in total of $22,000 were made to third party agents, Ms Fervin and Mr Mohamed Abdul Wadood (the Applicant’s brother). It was submitted:
The facts of the payments to third parties is not in dispute except to the extent of the allegation that the payments were made to the Applicant [as a Migration Agent]; they clearly were not and there is no evidence to the effect that they were. It is conceded that the agreement was in the sum of $10,000.
Mr Levingston contended that the culpability of the Applicant was created by his reliance upon third party agents who were entrusted with the management of financial arrangements.
Mr Levingston said there was no evidence to support the Respondent’s contention that Mr Wadood has breached Reg 2.87 by transferring the costs of the sponsor to the applicant. He said that the ‘Fees Agreement’ lacks specificity.
Mr Levingston conceded that the role of third parties in the collection and disbursement of funds brings Mr Wadood into a breach of his obligations under Part 5, and that his ‘less than satisfactory’ record-keeping and ‘failure to control third parties, including their representations and material communications with the client’ led the Applicant into error and in breach of his obligations under cl 6.1 of the Code.
Mr Levingston said there was a cumulative effect of Mr Wadood relying upon the ‘client management’ of Mr Lebbe and his delegation to third parties which ‘led him into serious error in respect to his obligations under the Code with respect to record-keeping, communications and financial management’. Mr Levingston conceded that duties under the Code cannot be delegated as the overall responsibility for the management of the client and the financial aspects of the relationship rests with the Registered Migration Agent, not any third party.
Mr Levingston said it was not the Applicant’s submission that Mr Lebbe was being untruthful, that he had an interview with a franchise-holder of Brumby’s Bakery and that there was ‘importunement’ from the Applicant to Mr Lebbe for further payment for migration services.
In mitigation, Mr Levingston submitted that the overall conduct of Mr Wadood does not show a systemic course of conduct calculated to avoid or neglect his obligations under the Code. He submitted:
These events although taking place over a significant period of time are in effect a series of individual acts and an accretion of breaches which, although entirely avoidable do not show a contempt or disregard for the Code of Conduct. The Applicant was led into error by his brother and his brother’s associate MMZ Fervin. By reason of his relative inexperience and the importunity of his brother[,] the Applicant was led into error and into serious breached [sic] of the Code of Conduct.

Mr Levingston submitted that the most appropriate course is that Mr Wadood be suspended and required to undertake remedial ‘CPD’ at the direction of MARA.
CONSIDERATION
The admitted conduct
The Applicant in this matter has admitted almost all of the shortfalls in his conduct. In his oral evidence under cross-examination, he denied threatening Mr Lebbe and said he had refunded the money he had paid fully. Mr Wadood said his brother deposited the money in Mr Lebbe’s account in Sri Lanka. Mr Wadood admitted that the refund followed him receiving notices from MARA about the complaint.
In response to questions about what he is currently doing, Mr Wadood said he continues to be a director of his company Oz Study & Migration but employs registered migration agents. He said his role is to manage the Australian office and one that he maintains in India. He said he conducts marketing to potential clients on social media, handles incoming phone calls and did the accounting.
In response to Mr Cunynghame, Mr Wadood said he engaged an external media company who maintains his company’s Facebook profile and that ‘posts’ are written by this company.
Mr Cunynghame took the Applicant through various exchanges on Facebook, a printout of which was before the Tribunal. Some of them thanked him by name and in response to a direct question from the Tribunal, Mr Wadood said they were old clients. He said, “When it comes to [migration] cases, I don’t get involved.”
In response to direct questioning from the Tribunal, Mr Wadood said that the Brumby’s franchisee did not know that one of the people he interviewed for the vacant baker position was his sister-in-law because her surname is different from his.
Noting that there was no direct submission from the Respondent that Mr Wadood was continuing to carry on as, or hold himself out to be, a migration agent, the Tribunal considers that the print outs from the Facebook page of the Applicant’s company do not amount to sufficient evidence that this is the case.
Mr Wadood’s conduct fell far short of that which would be expected from a registered migration agent, accepting Mr Levingston’s submissions accepting that some of the shortfalls would now amount to breaches under the updated version of the Code, but did not amount to that at the time.
It is in the Tribunal’s view disingenuous of Mr Wadood to say that the Brumby’s franchisee did not know his sister-in-law was a with Mr Lebbe rival for the baker vacancy. That may well be the case, but this assertion by Mr Wadood misses the point. It was completely improper and amounted in my view to an effective conflict of interest for him to be, at the same time he was acting as the appointed agent for Mr Lebbe, to be agent for his sister-in-law who was a competitor for the same job. Mr Wadood in his oral evidence said he did tell Mr Lebbe, which is why he lodged his complaint. The Respondent submitted he did not.
Regardless, it does not matter in my view whether the Brumby’s franchisee knew of his relationship by marriage with a candidate, or not. It was not appropriate conduct by Mr Wadood because it amounted to an effective conflict of interest between him on the one hand being obliged to carry out his duties consistent with his obligations as a migration agent, the Code of Conduct and his statutory duties for Mr Lebbe who had engaged him, and, on the other hand, having personal knowledge that his sister-in-law was a direct competitor for the job Mr Lebbe was seeking.
The Tribunal rejects the submission that Mr Wadood’s ‘culpability was created’ by the actions of third parties and that his responsibility is somehow diminished because of the involvement and actions of third parties, namely his brother and Ms Fervin. After making these submissions, Mr Levingston then correctly acknowledged to the Tribunal that a registered migration agent is directly responsible for providing migration services to an engaged client. The involvement of third parties, whatever their roles, provides no absolution to Mr Wadood from this obligation. In particular, the involvement of the Applicant’s brother in relation to the payments by Mr Lebbe illustrated a lack of appreciation of his responsibility for his clients’ funds at best, and wilful recklessness, at worst.
While the money was refunded to Mr Lebbe, that did not happen promptly, and I accept the Respondent’s submissions that it only occurred following a number of letters to Mr Wadood from MARA. That is totally unsatisfactory conduct by a registered migration agent.
The Respondent submitted that it is not necessary for the Tribunal to conclude that the Applicant set out to mislead MARA because the fact is that he did indirectly mislead the Authority because he did not give full details to MARA of the Publique contract.
The appropriate sanction
Section 292 of the Act provides that if a person’s registration as a migration agent has been cancelled under s 303, that person cannot be registered within five years of the cancellation. This is a relatively blunt provision which allows no discretion. Therefore, in this case with the Applicant largely admitting his misconduct and Mr Levingston, on his behalf, essentially making submissions in mitigation and penalty, the Tribunal must first consider whether the misconduct rose to the level meriting cancellation and, if not, what other sanction should be imposed instead.
In terms of the scale of the penalty, the Tribunal accepts that Mr Wadood has accepted responsibility for his conduct and has made, albeit belatedly, financial restitution to Mr Lebbe. I am not prepared to accept Mr Levington’s oral submissions that the Applicant was led into the breaches of the Code by third parties because of his inexperience. That cannot be sustained at the same time as the concession that he knew – and knew at the time – that he could not delegate certain of his responsibilities to others.
Having considered the submissions and the oral evidence, the Tribunal considers that the conduct by the Applicant of migration services for Mr Lebbe was completely unsatisfactory. The Respondent invited me to consider an apparently forged signature on the Publique contract, purporting that it was signed by Mr Lebbe, but which he declares he did not sign. I cannot make any definitive finding about that, except that I accept the written declaration by Mr Lebbe that he did not sign it. The Tribunal cannot say who generated the forged signature.
The over-charging of the Applicant was completely at odds with the Code, and the failure to keep the funds in the clients’ account and instead, it seems, to have left them to be handled by third parties in Sri Lanka including his brother, was a significant failure by Mr Wadood.
The over-arching failure of Mr Wadood is that he was not acting in the best interests of Mr Lebbe as the client who had engaged him. That is the principal responsibility of any registered migration agent.
However, there is no evidence before the Tribunal of any pattern of other misconduct. The Tribunal notes that Mr Wadood was registered in April 2015 (TD, p 13). The nomination of Mr Lebbe for a (then) subclass 457 visa was lodged in June 2017, just over two years later. The Applicant was relatively inexperienced at the time. The cancellation decision was on 13 April 2021, some two years ago.
In Kraues, Perry J said, at [17]:
Importantly, the purpose of the discretionary powers conferred by s 303 is protection of the public and not punishment as such: Shi at [50] (Kirby J); see also by analogy Smith v New South Wales Bar Association [1992] HCA 30; (1992) 176 CLR 256 at [270] (Deane J).
An element of considering protection of the public, and in particular that subset of the general public who avail themselves of the services of migration agents, is whether there has been a pattern of conduct which breached the Code of Conduct, or in the absence of a pattern, a single instance of a very serious breach, including whether the misconduct might amount to a criminal offence.
The Respondent urged the Tribunal to have regard to what is called the Complaint Classification Matrix, which is part of a procedural instruction issued by MARA. In terms of ‘major’ (i.e., the highest level) of breaches, the Matrix includes conduct that demonstrates that the agent is not a person of integrity or is not a fit and proper person to give migration advice; a single instance of a serious breach of the Code; serious repeated breaches of the Code; indifference to, or general disregard of, Australian laws fraudulent or otherwise criminal behaviour. The allegations in this part of the Matrix include fraudulent or criminal behaviour; a fundamental lack of knowledge of the relevant law; and dishonest or reckless behaviour.
The ‘moderate’ (i.e., intermediate level) of breaches in the Matrix includes multiple breaches of the Code; a repeated failure to satisfy professional responsibilities; failure to manage client funds; conflict of interest; dishonest or reckless behaviour.
I am not satisfied that there is evidence of criminal behaviour, and I interpret the phrase in the Matrix of ‘serious repeated’ breaches of the Code to mean that the breaches must be both serious and, also, repeated (i.e., to use the Dictionary definition, ‘occurring constantly or often, over and over again’) over a span of time.
I am satisfied that in Mr Wadood’s conduct towards Mr Lebbe there were instances of reckless behaviour, a perceived and, I would say, probable conflict of interest, improper treatment of client funds, and a failure to satisfy professional responsibilities. I am not completely satisfied to find that the Applicant has displayed that he is not a person of integrity or a fit and proper person. That should not give any comfort to Mr Wadood that any of his conduct towards this particular complainant was in any way satisfactory, but there was no evidence before me that this was reflective of a general approach or, in the words of the Matrix, of ‘repeated’ instances of breaches with a range of clients.
The Tribunal is prepared to accept that the evidence supports this was an isolated incident, although as Mr Levingston accepted, it was a series of failures in relation to the client Mr Lebbe, not just one or two failures. However, egregious as the failures were in how Mr Lebbe was dealt with, on the evidence before me, the misconduct was confined to one unfortunate client.
As such, and after considering the contents of the Complaints Classification Matrix as a guide, the Tribunal considers that the correct and preferable decision in this matter is to set aside the decision to cancel Mr Wadood’s registration. The Applicant’s registration was cancelled on 13 April 2021 under s 303(1)(a) of the Act for a period of five years, and he could not be registered as an agent before 13 April 2026. The Tribunal determines that because of the rigidity of s 292 of the Act, the cancellation in this case was not proportionate to the misconduct. However, there was serious misconduct that warrants a significant sanction. The Tribunal rejects the submissions made by the Applicant that the cancellation should be substituted by a requirement only to undertake professional development courses. The misconduct acknowledged by Mr Wadood and found by this Tribunal warrants a heavier penalty.
In place of the cancellation, the Tribunal will substitute a decision that the Applicant’s registration as a registered migration agent is suspended under s 303(1)(b) of the Act as the Tribunal is satisfied under s 303(1)(h) of the Act that Mr Wadood has not complied with the Code of Conduct prescribed under s 314 of the Act.
The period of suspension under s 304(1)(a) will be a period of three years and eight months starting from 13 April 2021 and ending on 12 December 2023, but a condition of lifting the suspension under s 304(1)(b) of the Act is that the Applicant undertake and complete courses in (i) obligations to clients and (ii) record-keeping, as determined and directed by MARA. However, if the Applicant has not completed courses to the satisfaction of MARA by 12 December 2023, the suspension period will continue until the date when he has.
The Tribunal considers, on all the material before it, that the effect of this decision is proportionate to the misconduct admitted by the Applicant. It means that he will not be able to work as a registration agent for a total period of 42 months and will not be able to be registered as a migration agent unless he has completed courses which remind him of his duties. This additional training should militate the likelihood of a recurrence.
DECISION
1. The decision under review is set aside.
2. In its place, pursuant to s 43(1)(c)(i) of the Administrative Tribunal Act 1975, the Tribunal decides –
(a)The registration of Mr Mohammed Silmy Abdul Wadood as a registered migration agent is suspended under ss 303(1)(b) of the Migration Act 1958.
(b)The period of suspension under s 304(1)(a) of the Act is from 13 April 2021 to 12 December 2023, subject to satisfying the condition in paragraph (c).
(c)A condition for the lifting of the suspension under s 304(1)(b) of the Act is that Mr Wadood complete courses as determined and directed by the Migration Agents Registration Authority in (i) obligations to clients (ii) record-keeping.
(d)If Mr Wadood has not completed courses to the satisfaction of MARA by 12 December 2023, the suspension period will continue until the date on which MARA is satisfied that he has.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.............[SGD]..........................
Associate
Dated: 23 May 2023

Date of hearing:
23 March 2023

Applicant solicitors:

Applicant representative:

Christopher Levingston & Associates

Mr Christopher Levingston

Respondent solicitors:

Sparke Helmore Lawyers

Respondent representative:

Mr Adam Cunynghame

Date of hearing:	23 March 2023
Applicant solicitors: Applicant representative:	Christopher Levingston & Associates Mr Christopher Levingston
Respondent solicitors:	Sparke Helmore Lawyers
Respondent representative:	Mr Adam Cunynghame