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.

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wadood and Migration Agents Registration Authority

Details

AGLC: Wadood and Migration Agents Registration Authority [2023] AATA 1322
Case: [2023] AATA 1322
Decision Date: 23 May 2023

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Migration Agents Registration Authority (MARA) to cancel the registration of Mr Mohammed Silmy Abdul Wadood as a migration agent. The cancellation followed a complaint by a client, Mr Lebbe, concerning Mr Wadood's conduct in relation to his application for a Skilled (Subclass 457) visa. Mr Wadood admitted to most of the factual shortfalls in his conduct, which MARA found constituted breaches of the Code of Conduct for migration agents.

The Tribunal was required to determine the appropriate sanction for Mr Wadood's admitted breaches of the Code of Conduct. Specifically, the Tribunal had to consider the nature of Mr Wadood's conduct, whether it constituted a pattern of misconduct, and what sanction would best match his improper conduct, given the range of sanctions available to MARA under the Migration Act 1958.

The Tribunal found that while Mr Wadood's conduct in relation to Mr Lebbe's visa application involved significant failings, including charging excessive fees and an undisclosed conflict of interest where he acted for both Mr Lebbe and his sister-in-law for the same job vacancy, there was no evidence of a pattern of misconduct. The Tribunal noted that Mr Wadood had admitted most of the shortfalls and that his refund to Mr Lebbe followed MARA's notices regarding the complaint. The Tribunal considered that the cancellation decision was disproportionate and substituted a decision to suspend Mr Wadood's registration for a period of 42 months, from 13 April 2021 to 12 December 2023. This suspension was conditional upon Mr Wadood completing specified courses in client obligations and record-keeping to MARA's satisfaction.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONThe 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.