Wang and Migration Agents Registration Authority
[2005] AATA 628
•30 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 628
ADMINISTRATIVE APPEALS TRIBUNAL )
) NoN2004/1176 N2004/1334
GENERAL ADMINISTRATIVE DIVISION ) Re STANLEY YAN WANG Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Michael Griffin, Member Date 30 June 2005
PlaceSydney
Decision The Tribunal affirms the decisions under review
[sgd] M. Griffin
Member
CATCHWORDS
MIGRATION AGENTS – suspension of registration – refusal of registration – breaches of the code of conduct – failure to maintain professional library – failure to maintain separate client accounts – failure to respond to the Authority – decisions affirmed
LEGISLATION
Migration Act 1958 ss 290, 291A, 300, 303, 308
Migration Agent Regulations 1998, Schedule 2
CASE LAW
In Re Donald and Australian Securities and Investment Commission (2001) 64 ALD 717
REASONS FOR DECISION
1. These applications, made by Mr Stanley Wang (“the applicant”), are for a review of two decisions made by the Migration Agents Registration Authority (“the respondent”). The first decision, made on 24 May 2004 (N2004/1334), suspended the applicant’s registration as a migration agent for three years or until such time as the respondent was satisfied that specified conditions were met. The second decision, made on 16 August 2004 (and notified in a letter dated 18 August 2004)(N2004/1176), refused the applicant’s application for repeat registration as a migration agent.
2. At the hearing in the Tribunal on 30 March 2005, the applicant was self-represented. The respondent was represented by Ms Stella Koya of Phillips Fox Solicitors.
3. The Tribunal received into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act1975 (T1-T25).
Background
4. The applicant was first registered as a migration agent on 23 April 1993.
5. N2004/1334 On 11 May 2001, the respondent sent the applicant a letter, under its powers under section 308(1)(c) of the Act, which requested certain information about his migration agent’s business. The letter requested the following documentation;
(a)An Australian Securities and Investment Commission (”ASIC”) Historical Extract for the company ‘Australian Bandway International Services Co’.
(b)Bank statements for the applicant’s client accounts.
6. The respondent received some documentation from the applicant on 31 May 2001. An ASIC historical extract was not received with this information. On 2 July 2001 the respondent sent a second letter under section 308(1)(c) of the Act which again requested the company’s ASIC historical extract as well as evidence of the maintenance of a professional library.
7. On 6 July 2001 the respondent sent the applicant a letter advising him that it was considering cautioning, suspending or cancelling his registration as a migration agent, pursuant to section 303 of the Act, for allegedly breaching clauses 6.3, 7.1 and 7.4 of the Code of Conduct (“the Code”).
8. From 24 July 2001 to 7 August 2001, the respondent received various documents from the applicant, which included a copy of the applicant’s ‘client contract’, evidence of completion of professional development and an ASIC historical extract.
9. On 19 February 2004, the respondent sent the applicant a letter advising him that it was again considering cautioning, suspending or cancelling his registration as a migration agent, pursuant to section 303 of the Act, for allegedly breaching clauses 2.5 and 7.1 of the Code of Conduct (“the Code”). The applicant’s submission was due in by 12 March 2004.
10. The respondent did not receive a response from the applicant to this letter but in his application for repeat registration, received by the respondent on 22 April 2004, the applicant indicated that he did not keep separate client accounts as his business had not operated in Australia for some time.
11. On 24 May 2004, the respondent made the decision to suspend the applicant’s registration for a period of three years or until specified conditions (see paragraph 14) had been met.
12. N2004/1176 The applicant’s application for repeat registration as a migration agent was received by the respondent on 22 April 2004. The respondent then sent the applicant a letter, dated 24 June 2004, which informed him that it was considering refusing his application for repeat registration as a migration agent, pursuant to section 290 of the Act. The reasons for this consideration were stated to be the alleged breaches of clauses 6.3, 2.5 and 7.1 of the Code. These alleged breaches were in direct relevance to the allegations made in matter number N2004/1334.
Issues
13. The issues before the Tribunal are twofold.
14. In the matter N2004/1334, the issue before the Tribunal is whether, pursuant to sections 303(b) of the Act, the applicant should have his registration as a migration agent suspended for three years for failing to comply with the Code of Conduct prescribed under section 314 of the Act, or alternatively, suspended until such time as the respondent is satisfied that the following conditions have been met;
(a)The applicant has produced to the respondent evidence that he keeps an account for operating expenses and a separate account for money paid to him for clients for fees and disbursements, and;
(b)The applicant has produced to the respondent receipts for the maintenance of a professional library.
15. In the matter N2004/1176 the issue before the Tribunal is whether the applicant is not a fit and proper person to be registered as a migration agent or is not a person of integrity, pursuant to section 290(1) of the Migration Act 1958 (“the Act”).
Legislation
16. Section 290 of the Act provides as follows:
(1) 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
(c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a) the extent of the applicant’s knowledge of migration procedure; and
(c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(g) any bankruptcy (present or past) of the applicant; and
(h) any other matter relevant to the applicant’s fitness to give immigration assistance.
(3) In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:
(a) any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914);
(b) any criminal proceedings that the individual is the subject of;
(c) any inquiry or investigation that the individual is or has been the subject of;
(d) any disciplinary action that is being taken, or has been taken, against the individual;
(e) any bankruptcy (present or past) of the individual.
(4) To avoid doubt, this section applies to all applicants (not just first
time applicants).
17. Section 303 of the Act provides as follows;
(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. Section 308 of the Act provides as follows;
(1) The Migration Agents Registration Authority may require a registered migration agent:
(a) to make a statutory declaration in answer to questions in writing by the Authority; or
(b) to appear before an individual or individuals specified by the Authority and to answer questions; or
(c) to provide the Authority with specified documents or records relevant to the agent’s continued registration.
(2) If a registered migration agent appears before one individual to answer questions, that individual must record the questions and answers and give the record to the Authority.
(2A) If a registered migration agent appears before 2 or more individuals to answer questions, one of them must record the questions and answers and give the record to the Authority.
(3) A registered migration agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.
(4) However:
(a) any information or document provided in response to a requirement under subsection (1); and
(b) any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (1);
is not admissible in evidence against the registered migration agent in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
19. Schedule 2 of the Migration Agents Regulations 1998 (“the Regulations”) contains the ‘Code of Conduct’ (“the Code”) for migration agents in Australia. Following are the relevant clauses of the Code. Clause 2.5 of the Code provides as follows;
A registered migration agent must:
(a) take appropriate steps to maintain and improve his or her knowledge of the current versions of:
(i) the Migration Act 1958; and
(ii) the Migration Regulations 1994; and
(iii) other legislation relating to migration procedure; and
(iv) portfolio policies and procedures; and
(b) either:
(i) maintain a professional library that includes those materials; or
(ii) if the agent’s employer, or the business in which he or she works, maintains a professional library that includes those materials — take responsibility for ensuring that he or she has access to the library.
Note A registered migration agent must satisfy the requirements for continuing professional development set out in Schedule 1 to the Migration Agents Regulations 1998.
20. Clause 6.3 of the Code provides as follows;
A registered migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.
21. Clause 7.1 of the Code provides as follows;
A registered migration agent must keep separate accounts with a financial institution for:
(a) the agent’s operating expenses (the operating account);
and
(b) money paid by clients to the agent for fees and disbursements (the clients’ account).
Consideration of the Issues
22. The respondent contends that it is not necessary for the Tribunal to consider the issues of fitness and integrity with respect to the refusal decision. It contends that the combined effects of sections 291A and 300 of the Act operate to prohibit the applicant from being registered as a migration agent. It contends that unless the Tribunal sets aside the suspension decision, which is also under review, the Tribunal must affirm the decision to refuse the application for repeat registration.
23. Section 291A of the Act provides as follows:
291A Applicant must not be registered if suspension would be in effect
If:
(a) an applicant has been registered (the previous registration) at some time before making the application; and
(b) the Migration Agents Registration Authority decided to suspend the previous registration (whether or not that decision was stayed); and
(c) the previous registration ended on or after the suspension decision;
then the applicant must not be registered during a period in which the previous registration would have been suspended had the previous registration not already ended.
Example 1: A registered migration agent’s registration is suspended for a period. The agent is deregistered under section 302 so the suspension of the registration ends. The agent cannot be re‑registered until the suspension period ends.
Example 2: The Migration Agents Registration Authority suspends a registered migration agent’s registration. The agent applies for review of the decision and a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends. Subsection 288(6A) prevents the agent from being re‑registered until the review proceedings are finalised. The agent cannot be re‑registered if the suspension decision is affirmed on review and the suspension would not have ended (had the registration continued).
Example 3: Under section 300, a registered migration agent’s registration is continued after the expiry day of the agent’s registration. The Migration Agents Registration Authority makes a decision to suspend the agent’s registration until the agent complies with a condition, and so the registration ends because of subsection 300(4). The agent cannot be re‑registered until the agent complies with the condition.
24. Section 300 of the Act provides as follows:
300 Automatic continuation of registration
When agent’s registration is automatically continued
(1) Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:
(a) the agent made a registration application; and
(b) the agent paid the registration application fee (if any) in respect of the application; and
(c) the Migration Agents Registration Authority had not decided the application.
Exception—suspension
(2) However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:
(a) the suspension had been completed before the end of the expiry day; or
(b) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.
Exception—cancellation
(3) Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:
(a) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or
(b) there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.
Period of continuation of registration
(4) The agent’s registration is taken to continue after the expiry day until the earliest of the following:
(a) the Authority decides the application;
(b) the Authority decides to suspend the agent’s registration;
(c) the Authority decides to cancel the agent’s registration;
(d) the end of the period of 10 months beginning on the day after the expiry day.
Application granted if no decision within a certain period
(5) If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:
(a) decided the registration application; and
(b) decided to suspend the agent’s registration; and
(c) decided to cancel the agent’s registration;
then the application is taken to have been granted at the end of that period.
When registration takes effect
(6) If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.
Example An agent’s registration is due to end on 31 October (the expiry day). On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.
The agent’s registration continues automatically past 31 October until the Authority decides the application.
On 15 November the Authority grants the application. The new 12 month registration is treated as having taken effect at the end of 31 October.
When Authority makes decision
(7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.
25. The applicant was registered prior to making the present application for repeat registration (s291A(a)). He was most recently registered on 26 April 2003. That registration was due to expire on 25 April 2004.
26. The Respondent decided to suspend the previous registration (s291A(b)). The Respondent’s decision to suspend the registration was made on 24 May 204.
27. The applicant’s previous registration ended on or after the suspension decision (s291A(c)). While the expiry date of the applicant’s previous registration was 25 April 2004, which is before the decision to suspend registration made on 24 May 2004, ss.300(1) operates so that the applicant’s registration was continued until the date of the decision to suspend the registration.
28. The applicant applied for repeat registration before the expiry date of his previous registration and the respondent had not decided the application for repeat registration at the date of the suspension decision. Pursuant to subsection 300(4)(b), the applicant’s registration is taken to continue until the respondent’s decision to suspend the applicant’s registration on 24 May 2004.
29. It follows that, in accordance with section 291A of the Act, the applicant must not be registered during the period in which the previous registration would have been suspended had it not ended. That is, the applicant must not be registered during the three years from 24 May 2004, the period of the suspension, or unless the suspension has been lifted because the applicant has complied with the conditions imposed by the respondent. Consequently, this matter turns upon the correctness of the suspension decision.
30. The suspension decision was based upon three alleged infringements of the Code of Conduct, viz. failure to maintain a professional library; failure to respond to the respondent’s requests within a reasonable time and failure to maintain a separate bank account for clients. I will consider each seriatim.
31. Professional Library – The applicant produced photographs and a list of the material which comprises his professional library (exhibit A3). The documents include the Migration Act 1958 and relevant delegated legislation and policy documents. However, there is no evidence as to the currency of those materials. Indeed, the applicant gave evidence that he did not regularly purchase up to date materials. He said had not upgraded his copy of the Procedure Advice Manual (“PAM”) since 2000 or 2001. He said “If I need more I ask my Australian friend to print a copy from their PAM”. He said he had not purchased any library materials since the closure of the Commonwealth bookshop in September 2003.
32. Separate Account for Clients – Mr Wang produced a document (exhibit A6) which he said is a computer print-out of a client account he opened with the ANZ bank on 13 July 2004. He said he had not maintained a separate client account previously because all of his clients were in China and paid him in China. However, he conceded in cross-examination that his National bank operating account for the relevant period (T19pp.46-48) contained entries for monies received from clients within Australia. The applicant said “At that time I not very understand the Code of Conduct”.
33. Response to THE RESPONDENT requests – The applicant said that he was very surprised when he read the respondent decision on this point because the library and bank account issues were first raised in 2001 and yet he had renewed his registration in 2001, 2002 and 2003 and “thought the problems were fixed”. It appears from the documentation that there was a considerable volume of correspondence between the parties throughout this period. Whilst on the evidence there is no direct response by Mr Wang to certain requests by respondent, nevertheless his registration was as he says renewed each year. However, it is clear that the applicant did not respond to the 19 February 2004 ‘section 309 letter’ inviting a response by 12 March 2004 and there is evidence that he did receive that letter (T17pp.76-78).
34. On the evidence before me, I am satisfied that, at the relevant time, the applicant failed to maintain a professional library, failed to maintain a separate client account and failed to respond to respondent requests within a reasonable period. The question arises whether or not such breaches justify suspension of registration as a migration agent. The fact is that these breaches of the Code of Conduct are not isolated matters but amount to a deliberate course of conduct over an extended period of time. Moreover, on his own admission, made twice during the hearing, the applicant did “not very understand the Code of Conduct then”. In Re Donald and Australian Securities and Investment Commission (2001) 64 ALD 717, the Tribunal considered a decision to make a banning order under section 829 of the Corporations Law. Whilst made in a different context, the Tribunal’s comments in that case are apposite for this suspension decision. The Tribunal said:
In considering that question , we are mindful that we must have as our objects only those of achieving public protection and the maintenance of proper professional standards. Although any decision may involve great deprivation for Mr Donald, the object of the order is not to punish or to exact retribution.
35. In this case, I note that the terms of respondent’s decision allow for the applicant’s registration to be re-instated if he complies with a number of conditions relating to his breaches of the Code. I am satisfied that the decision is aimed at the protection of the public including a particularly vulnerable section of the community and the maintenance of proper professional standards. I am satisfied on the evidence that the applicant is able to meet the conditions imposed by the respondent and that these conditions and the suspension decision are not aimed at punishing him. I find that the decision to suspend the applicant’s registration for a period of three years, or until he meets the necessary conditions for re-instatement was the correct and preferable decision. I find that the decision to refuse the application for repeat registration was the correct and preferable decision.
Decisions
36. The decisions under review are affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Niamh Kinchin AssociateDate/s of Hearing 30 March 2005
Date of Decision 30 June 2005
Representative for the Applicant Self-represented
Representative for the Respondent Ms Stella Koya
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