Wang and Migration Agents Registration Authority

[2004] AATA 1297

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1297

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/831

GENERAL ADMINISTRATIVE DIVISION		)
Re		MIN WANG

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member

Date3 December 2004

PlaceSydney

Decision The Tribunal affirms the decision to suspend the Applicant’s registration as a migration agent for three years.

….[sgd]Robin Hunt….
  Senior Member  

CATCHWORDS

MIGRATION AGENTS’ REGISTRATION – suspension of applicant’s registration as migration agent – Code of Conduct for migration agents prescribed under Migration Agents’ Regulations 2000 - Code of Conduct breached – applicant not a fit and proper person to give immigration assistance – suspension for 3 years.

legislation

Migration Act 1958 (Cth) Sections 303 and 314

REASONS FOR DECISION

3 December 2004	Robin Hunt, Senior Member
summary

1. Mr Wang was previously registered under the Migration Act 1958 as a migration agent. On 7 June 2004, the Respondent (the Authority) suspended Mr Wang’s registration for 3 years for breaches of the code of conduct prescribed under the Act. The Tribunal has affirmed the decision for the reasons set out below.

Discussion and evidence

2.      The suspension decision arose from the Authority’s enquiries after a complaint received from a member of the public. The Authority notified Mr Wang about the complaint and sought specified information and records on 27 January 2004. The Authority asked Mr Wang to furnish the complainant’s file, bank statements for the complainant’s account or clients’ accounts from 1 December 2002 to 1 December 2003, evidence of Mr Wang’s professional library and other records.

3.      According to the documents before the Tribunal, Mr Wang responded in a series of letters and also produced some of the material requested by the Authority. Mr Wang made some admissions of breaches of the Code of Conduct. In his letter of 14 February 2004 to the Authority, concerning the complaint made by his client, he wrote to the effect that he had accepted payment of $500 from the complainant and agreed to total fees of $1,000, the balance to be paid in instalments. He said he would have liked the complainant to sign a service contract but she had said it was not appropriate. He set out that he had offered to refund $800 if he made any mistakes but not if failure of the application was not his fault.

4.      On 29 March 2004 Mr Wang wrote to the Authority that he could not say he was perfect but tried his best to meet the requirements of the Code. He claimed to have done lots of free work for the complainant.  He thought the failure of the application was not his fault.

5.       On 14 May 2004 Mr Wang wrote to the Authority that he ran his migration business with his wife, Shen Zhi Wang. He was the person who gave advice and prepared the clients’ applications. His wife managed the financial side of the business. He continued, in part:

“In your letter, you have pointed out that my wife has used the St. George account to make several personal payments…. She said to me that she did this only for convenience….the money that she used in that account were the money that belonged to us (the case was closed and the money had become our profit). She said she never used the client’s money to pay any of our own personal payments. …”

6.      There are several additional breaches of the Code alleged but I have not gone into further detail in this case as I am satisfied that Mr Wang has committed serious breaches of the Code in view of his admissions made to the Authority. Mr Wang was invited to a Tribunal hearing in order to present arguments but did not appear.

7. I find that Mr Wang has committed breaches of Part 5 of the Code prescribed under section 314 of the Migration Act 1958. The power to cancel or suspend his licence is therefore enlivened by section 303 of the Act.

8.      In particular, I find that, among other probable breaches, Mr Wang has breached clause 5.2 of the Code as to fees and charges. Mr Wang has made some claims about discussions as to his fees but any estimate is conditional on the outcome and is uncertain as fees depend on whether failure would be his fault.  He has not mentioned any discussion about time taken for his services. I therefore find that he has failed, before starting work, to give an estimate of fees and the time likely to be taken in performing a service.

9.      I further find that Mr Wang has breached clause 5.5 of the Code in that he has not provided the complainant with a statement of services. This relates to his admission described above that the complainant did not sign any service contract. Further, the client did not receive a statement of services before making the payment to Mr Wang of $500 which he admits that he received.

10.     Finally, Mr Wang has admitted that clients’ monies were deposited in his wife’s personal bank account and not kept in a separate clients’ account. This conduct is a clear breach of clause 7.1 of the Code of Conduct. I regard this particular breach and the admission of mingling of personal and clients’ funds as particularly serious.

11. Section 314(2) of the Act requires a registered agent to conduct himself in accordance with the prescribed code of Conduct. It follows that I have decided that the decision made by the Authority on 7 June 2004 to suspend his registration for three years is an appropriate decision. Mr Wang should not be permitted to continue to practise as a registered agent until he can comply with the Code. Under the terms of section 303(f), he is not a fit and proper person to give immigration assistance once he failed to comply with the Code of Conduct as prescribed by section 314 of the Act.

12.     The Tribunal affirms the decision to suspend Mr Wang’s registration for a period of 3 years from the date of the Authority’s decision dated 7 June 2004 which was notified to Mr Wang by letter dated 8 June 2004.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  3 December 2004
Date of decision      3 December 2004
Solicitor for the Respondent          Phillips Fox