Weiming Qian and Migration Agents Registration Authority
[2014] AATA 185
[2014] AATA 185
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1073
Re
Weiming Qian
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 4 April 2014 Place Sydney The Tribunal affirms the decision under review.
...[Sgd].....................................................................
Ms N Bell, Senior Member
CATCHWORDS
MIGRATION – Migration agents registration – immigration assistance – fit and proper
person – person of integrity – failure to act in best interests of clients – competence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 290(1), 290(2), 303(1), 314
Migration Agents Regulations 1998 (Cth), Schedule 2
Migration Agents Code of Conduct
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Feng v Migration Agents Registration Authority [2002] AATA 709
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Holbrook and Australian Postal Commission (1983) 5 ALN 35
Re Optimise Group Pty Ltd and Commissioner of Taxation (2010) 119 ALD 585
Re Perring and Australian Postal Corporation (1993) 31 ALD 693
Roszy and MARA [2008] AATA 434
SZMHB v Minister for Immigration & Anor [2008] FMCA 1062
SZNKB & Ors v Minister for Immigration & Anor (No.2) [2009] FMCA 615
SZOOI v Minister for Immigration & Anor [2010] FMCA 816
SZOUS v Minister for Immigration & Anor [2011] FMCA 166
SZOVJ v Minister for Immigration & Anor [2011] FMCA 173
SZOVP v Minister for Immigration & Anor (No 2) [2011] FMCA 442
SZOZL & Anor v Minister for Immigration & Anor [2011] FMCA 273
SZQIG v Minister for Immigration & Anor [2011] FMCA 619
SZQVX v Minister for Immigration & Anor [2012] FMCA 408WZANU v Minister for Immigration & Anor [2009] FMCA 764
REASONS FOR DECISION
Ms N Bell, Senior Member
4 April 2014
This application by Weiming Qian for review of the decision by the Migration Agents Registration Authority to cancel her registration as a migration agent has some unusual features.
First, the Authority’s decision was consequent upon the receipt of 17 separate complaints over a period of four years.
Second, 14 of those complaints were made by judicial officers, two were from proceedings in the Refugee Review Tribunal and one was made by a client of Ms Qian’s through the client’s solicitor from Victoria Legal Aid.
Third, the individual clients involved in the proceedings from which the 17 complaints arose were all applicants for protection visas. All were unsuccessful. That has meant that they have likely either returned to the countries from which they attempted to migrate to Australia or they cannot be or wish not to be located. I have heard no evidence from any of these individuals.
Fourth, the Applicant for review, Ms Qian, gave no evidence in these proceedings before this Tribunal and no evidence was tendered on her behalf.
One of the consequences of these features has been a paucity of evidence in some respects. There are gaps in the evidence. Ms Qian has declined to fill them where, in many circumstances, it might reasonably be expected that she could do so.
Another consequence has been that, where there is some suggestion of a business or employment relationship between Ms Qian and other people, the evidence to support the suggestion is, with one exception, scant. It follows that where complaints of wrongdoing rely on the existence of such a business or employment relationship they tend to fail. Indeed the Authority generally did not press arguments dependent on the existence of these relationships.
I was asked by the Authority to draw the usual inference from the failure by Ms Qian to give evidence (Jones v Dunkel (1959) 101 CLR 298). I draw that inference where it is available and appropriate. I was also asked on behalf of Ms Qian to draw a similar inference given the absence of witnesses for the Authority. Further, I was asked by Ms Qian to conclude that the effluxion of time and the reliance by the Authority on judicial comments severely constrains her ability to answer the complaints.
I was asked by the Authority to have greater regard to a pattern of conduct that it was contended emerges from the 17 complaints against Ms Qian, their provenance and the evidence that surrounds them, than to the minutiae of each individual complaint. The Authority submitted that the conclusion should be reached that Ms Qian is not a fit and proper person to be a registered migration agent and her registration should be cancelled. It also submitted that she has breached many provisions of the Migration Agents Code of Conduct and that is sufficient reason for her registration to be cancelled. I have adopted the broader course, although I have considered all of the submissions made on behalf of Ms Qian in respect of the evidence available in relation to each complaint and made what findings I can on that evidence. In doing so I have made inferences of the Jones v Dunkel kind where those are available and appropriate to be made.
The number of complaints against Ms Qian and the seven volumes of documentation surrounding them call for the use of appendices to these reasons for decision. Those appendices should be taken as forming part of these reasons.
ISSUES
Section 290(1) of the Migration Act 1958 provides that a person must not be registered as a migration agent if the Authority is satisfied that a person is not a fit and proper person to give immigration assistance or the person is not a person of integrity. Section 290(2) sets out a range of matters that must be taken into account in considering a person’s fitness and integrity. The list is not exhaustive.
Section 303(1) of the Act provides that the Authority may cancel the registration of a migration agent, or suspend or caution the agent if, relevantly, the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or the agent has not complied with the Code of Conduct. The Code of Conduct is made pursuant to section 314 of the Act, is set out as Schedule 2 of the Migration Agents Regulations 1998. It has as its aims to establish a proper standard for the conduct of a migration agent and to set out the minimum attributes and abilities that a person must demonstrate to perform as an agent under the Code.
The central issue is whether Ms Qian’s registration should have been cancelled. This turns on whether she is not a person of integrity or otherwise not a fit and proper person to give immigration assistance or whether she has failed to comply with the Code, or some combination of these.
If I find that Ms Qian is not a fit and proper person or a person of integrity or that she has failed to comply with the Code then I must consider whether her registration should be cancelled or whether some other outcome, such as suspension, is warranted.
Before I turn to examine these issues, it is appropriate to summarise the rather complex background to this application, to survey the range of complaints made against her and to note the law relevant to the evidentiary issues raised in this application.
BACKGROUND
Ms Qian was first registered as a migration agent in August 2003. Her registration was last renewed in August 2011. At the time she was first registered, she was one of two directors, with Mr Xiaohui Li, of a company called Eternity International (Aust) Pty Ltd. Mr Li is Ms Qian’s former husband. He is not a registered migration agent. In April 2004 Ms Qian informed the Authority that Eternity was her primary business.
In February 2008, Good Fortune Co, Ms Qian’s own company, was registered and in March 2008 Ms Qian informed the Authority that it was her primary business.
In August 2008, Ms Qian informed the Authority that she also worked for Beifang Zhi Jia, owned by Mr Li and registered as a business name of Eternity, as a secondary business.
In November 2008, Ms Qian informed the Authority that she had divorced her husband, Mr Li, but still maintained a business relationship with him. In August 2010, Ms Qian removed Beifang as her secondary address.
In her renewal of registration in 2011, Ms Qian advised that since 1 August 2010 she had provided migration services only under the business name of Good Fortune.
Seven complaints against Ms Qian were received by the Authority from November 2008 to August 2009. The complaints were investigated and closed. Four of the complaints were closed after a warning was given to Ms Qian for breach of clause 4.1 of the Code which concerns accepting work and giving advice for which the agent is not qualified. The other three complaints were closed with a finding that there had been no breach.
A further 10 complaints were received between June 2009 and October 2012. Following the receipt of these further complaints, the Authority re-opened the seven previously closed complaints. In addition, the Authority had become aware of concerns about Ms Qian’s business relationship with Beifang. She attended an interview with the Authority about that on 8 August 2008.
NATURE OF THE COMPLAINTS
The complaints against Ms Qian are from Federal Magistrates, Members of the Refugee Review Tribunal through the Department of Immigration, and from a solicitor from Victoria Legal Aid.
Appendix 1 to these reasons is an outline of the complaints, including judicial comment in transcripts or in judgments or the text of complaints made by legal representatives or officers. This outline is taken from material prepared by Counsel for the Authority, Ms Graycar.
In essence, the complaints allege that Ms Qian provided legal assistance, encouraged groundless applications, failed to act competently and diligently and made false statements. The complaints allege conduct that falls foul of a wide range of provisions of the Code. Appendix 2 sets out, for reference, the provisions of the Code that are relevant to the conduct alleged.
Some aspects of the complaints were conceded by Ms Qian, as were some breaches of the Code. These were:
(i)Ms Qian’s fee agreements were either absent or deficient and in breach of Part 5 of the Code;
(ii)There were gross deficiencies or absences in Ms Qian’s files with respect to record keeping and management, the provision of advice in writing and the confirmation of instructions in writing and these were in breach of 2.7, 2.8 and Parts 6 and 7 of the Code;
(iii)Ms Qian’s failures to conform with the requirements of the Court when witnessing a signature on documents that had been translated were conceded as failures to act diligently and to have regard to the relevant law and were thus breaches of the Code (2.1 and 2.3); and
(iv)Ms Qian was negligent in her failure to act on her client’s request to have a document in the Chinese language translated into the English language and to provide the translated document to the Refugee Review Tribunal.
On behalf of Ms Qian, vagaries were pointed to in the evidence on which the balance of the complaints were based. In one case, a key document was not available, in other cases judicial comment considered possibilities and was somewhat speculative. In many cases the evidence was circumstantial and conclusions reached were heavily dependent on inference.
The Authority acknowledged some of the weaknesses in the evidence. However, some matters were pressed. In broad terms, I was asked to find that Ms Qian’s conduct included drafting grounds for judicial review in multiple matters; preparing grounds for judicial review that were “template” grounds in that they did not arise from the individual case; preparing applications for judicial review that were groundless; manufacturing or encouraging the manufacture of statements and claims for protection visas; failing to respond to a request for submissions from the Federal Magistrates Court; failing to attend with her clients in the Refugee Review Tribunal and the Federal Magistrates Court; failing to competently and diligently assist her clients and act on their instructions; and making false statements to the Authority.
EVIDENTIARY ISSUES
Before I turn to the specific matters raised by the complaints, I will consider the unusual evidentiary aspects of this application highlighted earlier.
The most striking thing about Ms Qian’s case was her absence from the proceedings and the absence of any evidence adduced by her. Her responses, at various times, to the Authority were available as part of the Tribunal documents, but these tended to explain little or were denials of allegations made. Compounding the difficulty was the absence of individual complainants in the usual sense. By and large, the complainants were judicial officers. A few were Tribunal Members and legal representatives. None of the clients of Ms Qian gave evidence to this Tribunal. Nor did any of the various associates of Ms Qian who featured or were mentioned in the complaints.
On behalf of Ms Qian, it was submitted that Jones v Dunkel has limited application in proceedings in the Tribunal; that any lack of evidence should be resolved against the Authority because it had not summonsed witnesses in the application; and that the onus of proof lies with the Authority.
It is settled law that the Tribunal stands in the shoes of the decision maker whose decision it reviews. Neither party carries an onus (McDonald v Director-General of Social Security (1984) 1 FCR 354). In this case, the Authority tendered seven lever arch folders of documents on which it had based its decision to cancel Ms Qian’s registration. Ms Qian tendered nothing and gave and called no oral evidence. Ms Qian wishes the Tribunal to set aside the Authority’s decision. I am mindful of the “common sense onus” referred to by Todd DP in Re Holbrook and Australian Postal Commission (1983) 5 ALN 35.
In relation to the application in this Tribunal of the principle in Jones v Dunkel, there is ample authority for and many examples of its application in this jurisdiction. (see ReKumar and Minister for Immigration and Citizenship (2009) 107 ALD 178 at [112]; Re Optimise Group Pty Ltd and Commissioner of Taxation (2010) 119 ALD 585 at [32]; and RePerring and Australian Postal Corporation (1993) 31 ALD 693 at 696-697). But again, it is a matter of common sense: as Penglis SM said in Roszy and MARA [2008] AATA 434, if there is “an evidentiary basis by which it could be found that the relevant clauses of the Code were not complied with and the applicant adduces no evidence to establish satisfaction of the clauses, then it is open to the Tribunal to make a finding of contravention”. In those instances where I am asked to make an inference against Ms Qian, because of a failure by her to adduce evidence on a matter particularly within her knowledge, then I will consider it available to me to do so if appropriate in the circumstances.
The applicable standard of proof in these proceedings is the balance of probabilities. The matters at stake for Ms Qian, specifically her livelihood as a registered migration agent, require that I be mindful of the matters identified in Briginshaw v Briginshaw (1938) 60 CLR 336. I am also mindful of the protective aims of Part 3 of the Migration Act and of the Code.
FINDINGS ON COMPLAINTS
I turn now to the 17 individual complaints made against Ms Qian to the Authority. I will identify each complaint as it is identified in Appendix 1 to these reasons. In many cases the state of the evidence severely limits the findings that can be made.
Complaint 4547/6136: complaint received by way of letter from the Federal Magistrates Court
This complaint involves an allegation, and a finding by the Authority, that Ms Qian provided legal assistance by preparing, and not merely translating, an application for judicial review of a Refugee Review Tribunal decision. The grounds were:
1Jurisdictional error has bee [sic] made
2Procedural Fairness has been denied.
It was submitted for Ms Qian that her denial of this to the Authority and her insistence to the Authority that she had merely typed what was told to her by her client, in this and many other matters, should be accepted.
A number of things stand in the way of acceptance of her denial:
·Her client’s insistence to the Court that he did not know what was in his application for judicial review and that he simply signed what Ms Qian put before him;
·Her client’s advice to the Court of other grounds for review;
·Her being recorded as the representative of her client before, during and after the judicial review application;
·The absence, in Court, of an affidavit of translation, although an undated, unstamped affidavit was produced with her file;
·Her failure to give evidence to address the presence of the undated, unstamped affidavit in her file, but not in Court, and the advice given by her client to the Court; and
·The absence of evidence as to who, if it was not Ms Qian, drafted the application for judicial review by Ms Qian’s client and formulated the grounds on which it was based.
I am asked by the Authority to infer that the better explanation is that Ms Qian prepared the judicial review application and its grounds. The transcript of the proceedings shows that Ms Qian’s client had little understanding of the proceedings, including being unsure whether the judicial review application shown to him was for the Tribunal or for the Court. He did not understand the words at the top of the affidavit shown to him. It is inherently unlikely that he would have instructed Ms Qian to draft grounds of review that referred to jurisdictional error and procedural fairness. I make the inference urged by the Authority and find that she gave legal assistance in contravention of clauses 4.1, 2.1 and 2.4 of the Code.
In addition, Attachment B to the decision of the Authority sets out the grounds of review adopted in each of the matters in the 17 complaints against Ms Qian. There is a distinct similarity between many of them, including the grounds concerned in this complaint. Ms Qian denied the use of meaningless template grounds in the applications for which she was the authorised agent. Instead, she told the Authority, it was common for her various clients to raise these grounds over and over. I reject this untested assertion. It is so unlikely in people with limited English language skills and experience of the Australian legal system as to be fanciful. There is no evidence before me, and no basis on which to infer, that there exists among Ms Qian’s clients a conspiracy or system of collusion in respect of the formulation of grounds for judicial review of protection visa decisions.
I find that Ms Qian not only failed to act in her client’s legitimate interests in contravention of clause 2.1, she sought to mislead the Authority about the work she performed on her client’s behalf. This contravenes clause 2.9A of the Code.
Complaint 4565/6137: complaint received from the Department following adverse reference by the FMC in the matter of SZMHB v MIMA [2008] FMCA 1062
This complaint, made by the Department of Immigration following adverse comment in the Federal Magistrates Court, also concerns the provision of legal assistance, the use of template grounds, failure to act in the client’s legitimate interests by using meaningless template grounds and making her client vulnerable to a substantial costs order and misleading the Authority. In addition, Ms Qian failed to supply information requested by the Refugee Review Tribunal in the time required by it or, responsively, at all and the application to the tribunal was dismissed.
Ms Qian made a similar denial to the Authority and stated she was merely translating her client’s words. Again the grounds relied on in this application for judicial review were jurisdictional error and procedural fairness, not particularised. Notably, the same typographical error that featured in complaint 4547/6136 also featured in the grounds for review in this complaint. There is no reasonable explanation for this similarity other than that it was a cutting and pasting of a saved form of words. In relation to the missed deadline for submission of material to the Tribunal and the failure to address the Tribunal’s request in any meaningful way, Ms Qian told the Authority she was not aware of any requirement of the Tribunal and was simply acting on her client’s instructions.
I am asked to infer that Ms Qian was, again, providing legal assistance, driving the matter and letting her client down by drafting meaningless grounds of review and failing to respond to the Tribunal’s request. I so infer for reasons similar to those adopted by me in relation to the complaint above.
There was also an issue, in the context of this complaint, about the use of and reference to “medicine certificates” and concerning Ms Qian’s client’s knowledge of the Mandarin language. I consider the evidence surrounding those issues is thin and I do not propose to consider it further, in the face of many other well-grounded aspects of this complaint.
Complaint 4569/6138: complaint received from the FMC
The Federal Magistrates Court referred Ms Qian’s conduct to MARA consequent on the failure of the applicant to attend at Court for the making of consent orders in her favour after the Minister agreed that the Tribunal had erred in its conduct of her case. The Court in later consideration of an application for judicial review commented adversely on the template nature of the grounds of that application.
Once the Court had, on the first occasion, made contact with Ms Qian’s client, the client told the Court that Ms Qian had advised her the matter would simply be remitted to the Tribunal and she need not attend Court. The client thereby came close to having her application dismissed when, in fact, the Minister had conceded jurisdictional error.
Ms Qian advised the Authority that she had told her client that her application would be remitted to the Tribunal and denied telling her that she did not have to attend Court. She said she told her client it was “up to her”. I note that the file produced by Ms Qian included the letter from the Minister’s legal representative which attached consent orders for signing by Ms Qian’s client. There was no evidence of these orders having been submitted to the client for signature nor of a response having been made to the Minister’s representative.
Ms Qian denied to the Authority that she had provided legal assistance to her client, stating, again, that she had merely helped her fill in the form according to her instructions.
I again reject this denial and find that Ms Qian provided legal assistance to her client in her application for judicial review. I also find that she failed to act in her client’s interests, having nearly lost her the benefit of the proposed consent orders and having drafted grounds for review that were, as described by the Court on the second occasion (per Smith FM), “taken from a precedent frequently seen in this Court at present”.
She thus breached clauses 2.1, 2.4, 2.9A and 4.1 of the Code.
Complaint 4579/6120: complaint received from the FMC
In this complaint the individual applicant for judicial review, who did not attend the Court because, he said, he was not advised by his agent to attend, but was contacted by the Court by phone, identified his agent as Mr Li, Ms Qian’s former husband. However, he noted the involvement of Mr Li’s “partner”, Ms Qian, up to the judicial review stage. It was pointed out to him by the Court that Ms Qian had witnessed his signature on an affidavit and he said he had never signed the document in her presence. He told the Court that after the Tribunal hearing Ms Qian had transferred his case to Mr Li. Again, the grounds of review were meaningless and/or did not raise issues particular to the application.
There is no dispute that Mr Li is not a registered migration agent.
Ms Qian told the Authority that she had not transferred the case to Mr Li. Rather, she said, she sent a form for judicial review to Mr Li’s office because his office was closer to where the client resided. Ms Qian also insisted that the client had signed the affidavit in her presence. Again, she maintained that she had merely translated the client’s words for him and had not given him legal assistance or driven the proceedings.
Regardless of the role played by Mr Li, Ms Qian appeared to accept, in her response to the Authority, that she was the client’s agent. The transcript of the judicial review hearing suggests that the client was quite clear and consistent in his evidence and not, as suggested by Ms Qian to the Authority, too nervous to remember who witnessed his signature on the affidavit. I find the following reasoning by the Authority persuasive:
363. There is no apparent reason for [the client] to have made up his claims to the Court regarding the transference of work and the witnessing of the affidavit. These claims were consistent and clear, and did not benefit his Court matter. There is no reason to believe that he forgot signing the forms in front of the Agent, as the Agent claims. I am of the view that [the client] truly believed that his case had been managed by Mr Li.
364. On the other hand, I have concerns about the Agent's account. The Agent disputes only one of the two main contentions in [the client’s] account. That is, she disputed that she did not witness [the client’s] signature, but seemed to concede that [the client] may reasonably have presumed that Mr Li provided the immigration assistance.
365. I find it highly unlikely that [the client] could have both had the form witnessed by the Agent and been of the misconception that Mr Li provided the assistance, as the Agent implies, particularly as the Agent contends that she merely transferred forms through Mr Li.
366. I also find it highly unlikely that if [the client] had been involved in dictating the content of the application to the Agent, as the Agent claimed, that he would have presumed Mr Li assisted him with the application.
367. It is also not clear in what circumstances the Agent would need to have transferred any forms through Mr Li to [the client] if she met with him to fill the forms out.
368. I find that it was most likely to be the Agent who filled out the forms. If Mr Li filled out the forms, he would have to have forged the Agent's signature as the witness, which I consider unlikely given other Justices of the Peace witnessed forms in the client's matters at the Campsie office.
369. I find the most likely version of events is the Agent filled out the forms without the involvement of [the client]. At some stage the forms were transferred, possibly via Mr Li, to be signed by [the client]. The postal address used by Mr Li's business in Campsie so the Court communication could be provided through Mr Li to [the client], as the Agent claimed. This scenario could have resulted in [the client] believing that the assistance had come from Mr Li, given Mr Li would have given him the original forms and later documentation.
It was submitted on behalf of Ms Qian that the inferences drawn by the Authority were not open to it. I note that similar inferences had been drawn by his Honour and I also note that the inferences drawn are further supported now by Ms Qian’s failure to give evidence or call witnesses in her own support in this application before this Tribunal. It is open to me to infer that the evidence she could give or call from others would not assist her case.
I find that Ms Qian provided legal assistance to this client, either on her own account or through a referral to a person who was not a registered migration agent, purported to witness his signature when she did not do so and misled the Authority. This amounts to contravention of clauses 2.1, 2.4, 4.1 and 2.9A of the Code.
Complaint 4827/6141: complaint referred by the solicitor for the Minister at the request of Scarlett FM of the FMC in the matter of SZNKB v Minister (No 2) [2009] FMCA 615.
In this complaint the client failed to appear at the Court hearing and later sought reinstatement of the application. The client and her daughter told the Court at the reinstatement hearing that Ms Qian had represented herself as a lawyer and showed certificates to that effect. The Court also noted that the appropriate jurat concerning translation, had not been used by Ms Qian.
In her response to the Authority, Ms Qian did not deny that she played a role in the judicial review proceedings. She merely repeated her claim that she had simply translated the clients’ words and witnessed the affidavit.
In this complaint there is some involvement by Beifang. The supporting affidavit is witnessed by Mr Li and not by Ms Qian. There is no dispute that at the time of the lodgment of the initial judicial review application that Ms Qian was working for Beifang. The application for reinstatement was signed by Ms Qian.
I cannot be comfortably satisfied that Ms Qian provided legal assistance with the application for judicial review. However, I find that Ms Qian failed to use the correct jurat on the affidavit supporting the application for reinstatement. I also note that even though the affidavit supporting the judicial review application was witnessed by Mr Li, Ms Qian included this complaint in her blanket assertion that all she had had done was translation and witnessing of a signature. This tends to undermine her blanket denial.
Complaint 4906/6142: complaint received from the FMC in the matter of WZANU v Minister [2009] FMCA 764
In this complaint, Ms Qian’s clients were living in Perth. They claimed that Ms Qian faxed an affidavit to them, they signed it and sent it back to her. Ms Qian denied signing the affidavit at all. The Authority maintained that the signature on the affidavit was similar to other signatures of hers. However, the affidavit was not in evidence. I can therefore make no finding that she signed the affidavit and consequently no finding that she falsely claimed to have witnessed the client’s signature.
The applicant told the Court that she could not read or write in English. Scarlett FM (as he then was) said:
15. … She was asked how she was able to prepare a typed application in English if she could not read or write English and she said, "Some of the items were helped to fill in by the migration agent." When asked if she remembered the name of the migration agent, the applicant said, "The surname Qian", which she spelt Q-i-a-n, and she went on to say, "and the first name is Weiming," which she spelt W-e-i-m-i-n-g. When asked where she was when she signed the document she told the Court that she was in Perth and that the migration agent faxed the application for her to sign. Once she had signed it, she posted the document back to her.
16. When asked if she had ever met this agent she said, "The first time, when I went to Sydney, I met him. Sorry, is the female, is I met her." She was asked if she had ever lived in Sydney and she said, "Yes, four days." She said she could not remember the date, but she stayed for four days in Sydney because she had to organise the information for the interview. When asked where in Sydney did she live she said, "I was staying at my migration agent's place on a temporary basis." When asked, "All right, and where was that?" the applicant said, "Auburn." She was asked if she knew an address in Sydney called 14 Zanco Road, Marsfield. The applicant's answer was, after the address has been spelled to her, "Thank you. This seems right to me. This seems to be the postal address that I gave to the Immigration Department so that they can post any document to me." She was asked, "Why did you do that if you were living in Perth?" She said, "Just because I cannot understand the letter from the Immigration Department. I need the migration agent to read it for me." She was then asked if the migration agent lived at Auburn and she agreed that that was so. She was asked if she had ever been to the address at 14 Zanco Road, Marsfield, and she said no.
His Honour said:
20. Whilst I was satisfied as to the applicant's identity, there remains a serious concern about the actions of the migration agent in these proceedings. It is clear that the residential address given on the application for a protection visa was false. The applicant said that she has never lived at Zanco Road, Marsfield, and indeed has not been there.
21. It is also clear that the residential address given on the application to the Tribunal for review of the delegate's decision was false. It is clear that the Tribunal was not advised of the applicant's real address in Western Australia, where apparently she had been living since shortly after her arrival on 18 September 2008, until 15 April 2009, after which time a Tribunal hearing in Sydney had already been arranged and had to be postponed. It is clear that the agent was aware that the applicant was residing in Western Australia, but failed to disclose that address to the Department, or, until 15 April 2009, to the Tribunal.
22. This is a matter that should be a cause for concern to the Minister and to the Principal Member of the Tribunal. The facts, in my view, call for an investigation by the Department into the actions of the agent in this case, and call for an explanation by the agent as to the way that she has conducted the matter. What further action is taken by the Minister, or any other body, in respect of the migration agent is entirely a matter for them, but I would consider that the cause for concern is quite apparent. As I am satisfied that the person who appeared before the court is indeed the applicant, it was appropriate for the Court to continue the application for review.
I note that the judicial review application, tendered by the Respondent, later in the proceedings before the Tribunal, notes no representative of the client and makes no mention of Ms Qian. In addition to that document I have only the Court’s decision dated 11 August 2009. I have no transcript of the hearing. In addition to these documents there is on file a form 956 apparently signed by Ms Qian on 27 October 2008. There is also a further form 956 signed by Ms Qian on 9 September 2009, one month after His Honour’s judgment.
Ms Qian denies absolutely having witnessed the client’s affidavit in support of her judicial review application.
I note that his Honour’s decision also contains the following paragraph:
32. I note that there is no certification by the person before whom the applicant swore or affirmed that the affidavit that the contents of her affidavit were translated and read over to her in her own language, and I note that the applicant speaks very little English and does not read or write English. Interestingly enough, the Justice of the Peace before whom the affidavit was sworn or adjourned [sic]was the applicant’s migration agent, Weiming Qian.
Ms Qian made a statutory declaration on 24 January 2013 declaring, among other things, that “I did not witness the signature of [the client] on her affidavit form. I did not sign my signature on that affidavit form. I have no idea who signed it on the form.” She also denied providing legal immigration assistance to the client.
In the absence of the affidavit, and given Ms Qian’s statutory declaration and the lodgment of a form 956 shortly after His Honour’s decision was handed down, although suspicious, I cannot be comfortably satisfied that Ms Qian provided legal assistance in the judicial review application, was instrumental in the provision of a false address or purported to witness the client’s signature when she had not.
Complaint 5462: complaint received from the FMC in the matter of SZOOI v Minister [2010] FMCA 816
In this complaint the Court’s concerns related to the preparation of the protection visa claim and the failure to include, as instructed, an important ground of the claim; the failure of Ms Qian to attend the Tribunal hearing; the circumstances of the preparation of the response to the invitation by the Tribunal to comment; and the failure of Ms Qian to facilitate her client’s receipt of free legal advice under the Minister's panel advice scheme.
It was submitted on behalf of Ms Qian that, in a contest between Ms Qian and her client, it is Ms Qian who should be believed. In the face of the client’s close questioning by the Court, and Ms Qian’s absence from Court, and her absence from the current proceedings in this Tribunal, I prefer the version of events offered to the Court by Ms Qian’s client. In addition, I note Ms Qian’s advice to the Authority that she had, in fact, refused to act for the client on judicial review. However, the documents show that immediately after the judicial review application was lodged so was a form 956, appointing Ms Qian as her migration agent.
Ms Qian did not respond to the Authority in relation to an apparent failure to pass on information to her client about the free legal advice available to her. Nor did she respond to the allegation that she had left critical information out of the client’s visa application, apart from saying that the explanation letter to the Tribunal was “directed and signed by” the client. Driver FM described that letter as saying that the failure to include the claim relating to information that the Chinese authorities were still looking for the applicant was the fault of the applicant and was her decision. As to Ms Qian’s non attendance at the Tribunal hearing, Ms Qian said it was her client’s preference that Ms Qian not attend.
I find these responses by Ms Qian disingenuous. I note that the letter from the Tribunal requesting the client’s explanation was sent to her at the agent’s address. I also note that the client required a Mandarin interpreter at the Court hearing. It is unlikely that the client could have produced the letter to the Tribunal herself. The client told the Court that it was prepared by Ms Qian and she, the client, signed it. I note that the agent’s file contained no version of the letter in the client’s language.
I further note that the client told the Court that Ms Qian had told her to go to the Tribunal and to the Court alone. It is highly unlikely that a person with no or limited English language skills, which can be inferred from her need for an interpreter in the Mandarin language, and with no experience of Australian legal institutions, would choose to attend without the support and expertise of the migration agent she had retained.
For Ms Qian it was submitted that she has had no opportunity to test the statements made by the client to the Court. However, Ms Qian has not made herself available in order that her limited responses to the Authority may be tested or so she could provide further explanation. I prefer the version of events told to the Court by her client on questioning by His Honour.
I find that Ms Qian failed to act in the lawful interests of her client and failed to have due regard to her client’s dependence on her knowledge and experience. I also find that she misled the Authority. This involves contraventions of clauses 2.1, 2.4 and 2.9A of the Code.
Complaint 5634: complaint received from the FMC in the matter of SZOUS [2011] FMCA 166
This complaint concerned grounds for judicial review that were ‘template’ in their form. The grounds used were:
1RRT considered my case unfairly. They doubt my claim without substantive evidence.
2Procedural Fairness [sic] has been denied by RRT.
3RRT did not consider my situation in China. I will be put in jail if I go back.
Ms Qian maintained again that her involvement was merely to translate the grounds as stated by her client.
However, I note that the Authority concluded that the application for judicial review had not been prepared by Ms Qian and instead was prepared by persons at Beifang at a time after Ms Qian had left Beifang. It based this conclusion on the absence of Ms Qian’s signature on the affidavit, the use of a different post office box and the fact that another person was listed as agent on the client’s application for a bridging visa following the application for judicial review.
However, I am asked by the Authority to infer that, by virtue of a professional relationship with other persons including Mr Li and Ms Yu, that Ms Qian was “driving” this application. In the absence of better evidence of such a professional relationship, I cannot be comfortably satisfied that Ms Qian prepared the application for judicial review or that she was “driving it” as urged by the Authority.
However, Ms Qian’s response to the complaint was that she had merely translated the grounds told to her by the client, the same response she gave in relation to all of the complaints that involve the use of template grounds. It is possible that she responded in this way to this complaint in error, failing to note that the application had been prepared by someone else. It is also possible that the person who prepared the application was in some way associated with her. In any event, her response casts further doubt on the veracity of her blanket insistence that, in similar template cases, she was merely providing translation services.
Complaint 5657: complaint received from the FMC in the matter of SZOVJ v Minister [2011] FMCA 173
In this complaint Ms Qian’s client failed to attend Court in Sydney and advised by letter on that day that she was in Brisbane. When telephoned by the Court she said she was represented by Ms Qian who had advised her to write to the Court in this way. She said Ms Qian was a student. His Honour concluded that it had been an attempt by Ms Qian to mislead the Court and obtain the advantage of delaying the proceedings.
The client told the Court that Ms Qian had prepared her application and affidavit and was still assisting her with her matter. However, the Authority concluded that the application was prepared by another person, but that this was an unqualified person to whom Ms Qian had referred the application. I note that Ms Qian’s file contained a document that appears to be a form document with a signature and dated 14 November 2010 together with what purports to be a translation into English as follows:
Declaration letter
I [client’s name] lodged the application to court with the help of the student as I did not have money to pay the lawyer for help. I have no job and I live in financial hardship.
I enquired it with migration agent Weiming Qian. She told me it is not easy to get success in the court. If failed, I need to pay the Government solicitor fee $3000 to $5000.
I knew the details of the form as the student told me.
Ms Weiming Qian still get visa for me with the Department.
Signature of [client’s name]
14/11/2010
I note that the affidavit in support of the application for judicial review was witnessed by a Ms Lai.
A letter to the Authority from Ms Lily Lai says in part as follows:
My name is Lily Lai. I am a student studying Bachelor of Policing at UWS.
I live with Weiming Qian at [address omitted]. So I knew her for 5 years.
Sometimes I went to her office in Auburn at 4408/57-59 Queen St. I helped her clients to fill the forms to Court and lodge for them as they did not speak English and they have no money to pay for lawyers. Sometimes, they signed the form in front of me as I am Justice of Peace. I took them to see lawyers at City as well. I remember I did that for [name of client]. I did not charge clients any money. I did it for volunteer. I show sympathy for those clients.
A statutory declaration made by Ms Qian on 7 December 2012 states she denies any professional association with Ms Lai, she does not work for her, she has no personal knowledge as to her contribution, she did not ask Ms Lai to prepare any applications and Ms Lai did not act on Ms Qian’s direction. In view of Ms Lai’s letter to the Authority, and her stated involvement at Ms Qian’s offices with Ms Qian’s clients, Ms Qian’s statements are not credible.
If the work was done by Ms Lai at Ms Qian’s office with Ms Qian as the recorded registered migration agent, responsibility must be sheeted home to Ms Qian. The question of whether Ms Lai was under the control and direction of Ms Qian is partly answered by their sharing of a postal address and that the work was done at Ms Qian’s office. At the very least there was an arrangement between them.
I am comfortably satisfied that Ms Qian directed this client to an unregistered person with whom she was associated. This conduct breaches clauses 8.1 and 8.3 of the Code.
Complaint 5738: complaint received from the FMC in the matter of SZOZL and SZOZM v Minister [2011] FMCA 273
In this complaint Driver FM (as he then was) noted that shortly after Ms Qian had been the subject of adverse judicial comment in another matter the client transferred to another agent, Ms Yu, who worked for Beifang. His Honour suggested that Ms Qian remained working on the matter behind the scenes in an attempt to deflect judicial attention.
Ms Qian’s response to the Authority was that she initially represented the client but was later replaced by Ms Yu; that she had no reason to continue to act behind the scenes; and that at the time she continued to share contact details with Beifang and did not change them until sometime after she had left Beifang.
It was submitted for the Authority that the better inference is that drawn by His Honour – that Ms Qian continued to act behind the scenes. I was asked to note that, when asked to produce her file, Ms Qian produced the Court Book. I was urged to conclude that this indicates her continued involvement.
I cannot, in these circumstances, be comfortably satisfied that Ms Qian prepared the judicial review application or that she drove the matter behind the scenes. However, I note that, again, Ms Qian bundled this complaint with others in relation to which she maintained that she provided translation services only. This further undermines the veracity of this blanket response.
Complaint 5872: complaint received from the FMC in the matter of SZOVP v Minister (No 2) [2011] FMCA 442
In this complaint, Ms Qian had not attended the Tribunal hearing with her client whom it was later found suffered from schizophrenia. Ms Qian was also involved in the original judicial review application made by the client. Later, the client obtained legal representation and one additional ground for judicial review was that the Tribunal’s hearing of the client’s application had been vitiated by Ms Qian’s failure to attend at the hearing. His Honour required Ms Qian to give evidence to the Court.
It was submitted for Ms Qian that his Honour was simply wrong and that the attendance of an agent at a client’s hearing is a matter for the instructions of the client and for the retainer. It was submitted that there is no general duty on an agent to attend a hearing in the absence of specific instructions from the client or a summons from the Tribunal or the Court. However, this complaint concerns a particular individual, agreed to have been suffering from a mental illness. It does not raise a question of general duty.
I note that his Honour, Driver FM, made the following findings:
50. As already noted, the Tribunal was critical of the applicant's migration agent in its reasons at [64] (CB 120). The agent, Ms Qian, gave evidence in these proceedings under compulsion by subpoena. Her evidence establishes the following:
(a)she is an experienced agent, having represented applicants in around 200 protection visa cases;
(b)Ms Qian very rarely, if ever, attends Tribunal hearing ostensibly because her clients do not want her to attend, even though she would be prepared to attend without an additional charge;
(c)Ms Qian was aware, at least in general terms, that the applicant had mental problems and she described the applicant's handwritten statement of her claims of persecution as a "mess";
(d)Ms Qian feels that she has nothing useful to contribute at a tribunal hearing and she would not normally expect to be called upon to contribute anything; and
(e)Ms Qian has little, if any, knowledge of migration law or of the complexities of the assessment of asylum claims under the Refugee's Convention and the Migration Act. She sees her role essentially as a more limited one of assisting applicants to present their claims in writing in proper form and little more.[Footnotes omitted]
With respect, I agree with the following conclusion reached by his Honour:
64. It is fair to conclude from the evidence given by the migration agent that the migration agent did not consider whether the applicant was able to properly appear by herself before the Tribunal. On her own account of the circumstances, the migration agent merely proceeded on the basis that she would not appear because the applicant did not want her to do so.
65. The applicant contends that the migration agent breached the prescribed obligations imposed on migration agents in acting as her agent. Notwithstanding that the applicant (on the agent’s evidence) told the migration agent that she did not want the agent to appear, the agent should have advised her that in all the circumstances it would be appropriate and in the applicant’s interests that the agent appeared. In my view, the agent failed to deal with the applicant competently and diligently and to have due regard to the applicant’s dependence on the agent’s knowledge and experience.
This involves breaches of clauses 2.1 and 2.4 of the Code.
His Honour’s finding as to Ms Qian’s knowledge of migration law and assessment of asylum claims under the Convention and the Act also grounds a breach of clause 2.5 of the Code.
Complaint 5886: complaint received from the FMC in the matter of SZQIG v Minister [2011] FMCA 619
The Court inferred in this matter that Ms Qian had been involved in the judicial review application notwithstanding that Ms Yu is nominated as the client’s advisor. The contact details given for Ms Yu were conceded, on behalf of Ms Qian, as identical to the contact details of Ms Qian. His Honour, Driver FM, noted that the client thought that her migration agent was someone else again, a Mr Li.
I note that the Authority concluded that strong contradictory evidence prevents the conclusion that Ms Qian provided legal assistance to the client in her judicial review application.
In these circumstances I cannot be comfortably satisfied that Ms Qian did provide legal assistance to this client. However, I note again that this complaint was included by Ms Qian in her blanket response that she had provided only translation services in judicial review applications. That blanket claim is further discredited.
Complaint 6337: complaint received from the Department with a request from the FMC to refer the Agent in the matter of SZQVX v Minister [2012] FMCA 408
This complaint was about the provision of assistance to a person to bring an unmeritorious claim to the Court.
The Authority found that someone other than Ms Qian (Lily Lai) had drafted the judicial review application. It was Ms Lai who witnessed the affidavit in support of the application for judicial review, signed on the same day as the application. This was one of the few cases in which the appropriate translator’s jurat was completed, in this case by a person named Goa. I note that the grounds for review in the judicial review application are quite unlike any other in this series of complaints. Ms Lai’s letter to the Authority, describing her association with Ms Qian is set out earlier in these reasons. The client’s recorded migration agent was Ms Qian and the client told the Court that his agent was a lawyer.
This matter may demonstrate that clients who used Ms Qian’s services to lodge a judicial review application were unaware that the applications were filled out by unqualified persons. However, unlike complaint number 5657, where a statement had been signed by the client to the effect that her judicial review application had been lodged with the help of a student and that advice had also been received from Ms Qian, all I have from the client in this complaint is His Honour’s note of the client’s evidence that his agent was a lawyer.
I cannot in these circumstances be comfortably satisfied that Ms Qian was responsible for the judicial review application and its unmeritorious grounds.
Complaint 6423: complaint received from the Department after adverse reference was made by the FMC in the matter of SZRPS v Minister [2012] FMCA 981
In this complaint Ms Qian conceded negligence in failing to provide documents translated from Chinese to the Tribunal. Her letter to the Court, making this concession, says:
Dear Judge,
….
... My negligence made me fail to fax them to RRT
…
Hope you Judge could remit the case to RRT.
Many thanks.
Sorry for my negligence in providing [client’s] documents to RRT.
It was submitted on Ms Qian’s behalf that mere negligence does not necessarily constituted professional misconduct. This may be correct. However, it was submitted by the Authority that the request to the Court to remit the case belies a failure to understand the difference between merits review and judicial review and thus reflects poorly on the agent’s competence.
I agree with this submission. I consider that this indicates a breach of clause 2.1 and 2.3 of the Code.
Complaint 4761: complaint received from a solicitor at Victoria Legal Aid
This complaint, made with the assistance of a lawyer from Victoria Legal Aid, concerned the failure by Ms Qian to meet the deadline for filing an application in the Refugee Review Tribunal. In this complaint the Authority conducted an interview with the client concerned. The record of interview is as follows:
I spoke with [the client], complainant in 4761 through an interpreter, in relation to her complaint against Ms Qian.
I asked her whether she signed a statement saying a student helped her lodge her judicial review application. She said no.
I asked her what assistance Ms Qian provided to her to lodge the application with the Court. She told me that the Ms Qian told her that she would help with the application but 'of course, you have to pay', and if anyone asks you have to say that you were helped by a student.
Asked how much [the client] paid for the court application and she said: between $1,000 and $1,500.
I asked who she paid, and she spelled out the name of Xiaohui Li, who she said was the ex-husband of Ms Qian.
I asked [the client] which of those two assisted her and what assistance they provided. She told me that Mr Li mostly helped her. [The client] told me that Mr Li helped her with the visa application and the RRT application, and then Ms Qian helped with the application to the Court
I asked what help Ms Qian provided. She said that Ms Qian filled in the form, translated the document, told her what to say and what to do, for example, that a student helped her.
[The client] said that due to a personal issue between Li and Ms Qian, they forgot to tell her to apply to the RRT. The personal issue was that they were getting divorced.
I asked [the client] how that happened. She said after she was refused time passed and she heard nothing. Then Mr Li called her and said: your case has been refused. She said that Mr Li wrote two letters to the department [sic] purportedly from her, saying her visa application had been refused and because she was so sad she had forgotten to lodge the application
I asked her whether the signature on forms submitted to statutory bodies were hers, and she said yes, but she said that he asked her to sign blank forms.
I asked her about her visa application and whether he gave her any help with that. She said he gave her the main idea and she could write around that.
When I asked whether the statement was true, she said yes.
Ms Qian’s response to the Authority was that she did not assist with the client’s merits review application and was appointed as the client’s agent for “obtaining all related documents for her Federal Magistrates appeal”.
Ms Qian denied providing anything more than translation services in relation to the application for judicial review and said she refused the client’s persistent requests to prepare the Court application.
I note that the supporting affidavit in the judicial review application was witnessed by Ms Qian and that the Department file in this matter shows that the Agent had some telephone contact with the Department on the client’s behalf regarding the lodgment of a Bridging Visa for the period until her judicial review application was decided.
Ms Qian also advised the Authority that she had had the client “sign off” on a statement in Chinese to the effect that she had received assistance from a student to complete the judicial review application form, that she provided her own grounds for review and the Agent did not provide any advice on this, and that she was aware of the financial consequences should her judicial review application fail. Ms Qian also advised the Authority that the client had appointed a solicitor to help her for the Court proceedings and did not require Ms Qian’s assistance for the judicial review application.
I note the Authority’s view that there is no apparent involvement of either a student or a solicitor in the judicial review application which lists the client’s own residential address as the address for service and notes no legal representative.
I find that Ms Qian assisted the client to lodge the judicial review application which, in the circumstances of the missed Tribunal deadline, was unmeritorious. I am inclined to the view that the statement which Ms Qian conceded was submitted to the client for signing was not accurate and was intended to mislead.
In circumstances where neither the client concerned nor Ms Qian have made themselves available to give evidence I can only rely on the complaint made by the client through a solicitor of the Victorian Legal Aid office, the client’s answers to questions by the Authority in an interview and the response given by Ms Qian to the Authority when the complaint and statements of the client were put to her. The inference to be drawn against Ms Qian in these circumstances is weightier than can be drawn against an unsuccessful applicant for a protection visa who made a complaint against Ms Qian through a solicitor and then submitted to questioning by the Authority. I prefer the version of events given by the client.
I find breaches of 2.1, 2.3, 2.4, 2.9A, 4.1, 2.17 and 2.18 of the Code.
Complaint 4623/6139: complaint received from the Department following adverse reference to the Agent was made in the Refugee Review Tribunal
This complaint arises from the following passage in the Tribunal’s decision:
39. The applicant was asked whether the claims he made in his written statement to the effect that he is a Falun Gong practitioner are false. He said “yes” and confirmed that those claims were untrue. He was asked if he had applied for a protection visa on the basis of being a Falun Gong practitioner in order to work and earn money in Australia. He said “yes”. He was asked if he had constructed his claims himself or was assisted by an agent. He said his agent assisted him in constructing his claims.
No transcript of Tribunal proceedings was available to me.
The client’s evidence to the Tribunal as summarised by the Tribunal appears to be about his untruthfulness and sheds little light on the conduct of the agent. Ms Qian has fairly elaborate records of the client’s admissions to her of the circumstances of his change of story. It is not as though the client was, when he went to the Tribunal, unaware of the claims he later said were false. The client’s credibility is profoundly damaged by his initial preparedness to pursue claims that were untruthful.
In her response to the Authority Ms Qian explained the method by which she took the client’s statement and provided a typed statement purportedly signed by the client but undated. She advised the Authority that she “gave it to (the client) to have a look”. She also provided a statement by another person who claimed to have introduced the client to her. I have no information as to the identity of this person. That statement was as follows:
[The client] told his reason to apply for protection visa. Ms Qian helped him to put his words in writing and later she showed the statement to [the client]. [The client] said it is right. Then he signed on [sic] Chinese statement. Two days later, we went to there [sic] again. Ms Qian helped [the client] filled [sic] the form and told him what put on form [sic] and asked him to sign on form and English statement [sic].
The application was dismissed with costs.
Complaint 6423: this was referred by the Department which referred to the Authority a copy of the reasons for decision of the FMC in SZRPS v Minister [2012] FMCA 981 as well as a statement by the Applicant provided to the Court and referred to in the judgment (T 994).
Driver FM noted that an issue was raised about the Tribunal not taking account of certain documents and continued:
The applicant concedes that the documents were not put before the Tribunal in translated form. He asserts negligence on the part of the migration agent who was acting for him in the review before the Tribunal. The letter, purportedly from the applicant's agent, admits negligence. That letter states that the applicant had provided documents in the Chinese language in March 2012, and that the agent had them translated into English. The agent appears to state that her assistant was meant to fax them once translated to the Tribunal, but this did not occur. The agent does not state in the letter what became of the translated documents. The letter asserts that the agent asked the applicant to mention the documents at the Tribunal hearing, and further asserts that the applicant had the originals in Chinese with him at the hearing, but the Tribunal member did not accept them or read them. The agent does not expressly assert that those untranslated documents were, at any time, offered to the Tribunal.
[45] I am surprised that the agent was apparently unwilling to make statements in relation to this matter by way of affidavit and that she has not attended court in order to assist the applicant in relation to what might be a significant matter, as she is apparently still assisting him in some way as a migration agent. The letter purportedly from the agent makes statements as to what the agent understands may have occurred at the Tribunal hearing but she could have no first hand knowledge of that as she did not attend the Tribunal hearing.
[46] There is no evidence of any fraud by the agent. On its face, the affidavit asserts negligence and the agent in her letter admits negligence. That may be a matter about which the Office of the Migration Agent's Registration Authority would have an interest if a complaint were made to it or the issues were otherwise referred to it. However, I am not persuaded that any error was committed by the Tribunal.
The letter from the Agent appears in the T documents at T 932 (ie, in the file relating to another complaint): it is a short letter dated 31 August 2012 and provides as follows:
Dear Judge
I am Weiming Qian, [the applicant's] migration agent. I received his ... [documents] in March 2012. I had them translated into English. Later my assistant faxed them to the RRT. I did not check if they were faxed. Actually they were not faxed. My negligence made me fail to fax them to RRT.
Hope you Judge could remit the case to RRt. Many thanks
Sorry for my negligence providing [the] documents to RRT
Weiming Qian [signed]
Complaint 4761: complaint received from a solicitor at Victoria Legal Aid claiming that the Applicant had not advised the claimant of the need to file an application for review with the RRT within 28 days (see T 332, T 333): MZYDF (orders only):
In this matter, a solicitor representing the applicant wrote to MARA by letter received 22 June 2009 to complain that the agent, who she had instructed, failed to lodge her RRT application in time and as a consequence, that application was dismissed as being out of time. The client alleged that the agent lodged the application 17 days after the time limit and charged her for doing so: see T 332.
Following the dismissal of the application, an application for judicial review was lodged and that application was dismissed as incompetent, with the applicant being ordered to pay costs.
Ground 2 of the judicial review application provided as follows:
I did not lodge application to RRT on time, but RRT should give me a chance ... The rule is not fair, should change. ...
The agent witnessed the affidavit filed in support of the application: see T 333 page 15.
When contacted about this, Ms Qian denied (T 334; T 335) assisting the client with her Tribunal application, and stated that she had help from a student, not Ms Qian, to complete the form for the FMC. In the subsequent response, she stated (para 3) "she has got no proof of my fault for her failure to RRT".
A document provided by Ms Qian shows that she was appointed the authorised recipient of RRT material on 15 January 2009, ie, after the date for lodging the application for merits review had passed (see T 336).
Ms Qian also provided a letter signed by the client stating that a student had helped her fill the form and sign it in front of Ms Qian which also stated that she had been advised that if she did not succeed, she would be liable for costs of between $3000 and $5000 (in fact, scale costs at that time were over $5000).
Further correspondence between MARA and Ms Qian is at T 337-T 341 (and see also T 345 where Ms Qian's most detailed response appears).
AT T342, there is a file note of a conversation with the client in which she told the officer she spoke to that Mr Li (Ms Qian's ex husband) helped her with her RRT matter and Ms Qian with the court proceedings. Her understanding was that personal issues between them (their then pending divorce) caused the deadline to be missed.
4623/6139: RRT matter (T 277-331): re manufactured claims
The claim to which this refers is contained in the Tribunal's decision record at T282, specifically, at pages 23-24 (paras 39 and 44) where the applicant confirmed to the Tribunal that the claims he made in relation to being a Falun Gong practitioner were untrue, and that he had been assisted by his agent in constructing those claims.
In her response to MARA's notification of the complaint, dated 23 March 2009 (received by MARA 26 March) at T 279, Ms Qian stated that she had asked the applicant about his replies at the Tribunal and continued:
He confirmed to me that every single word in his application was declared by himself. He did not know why he answered the questions in that way. He told me it was like something evil in his mind to control him.
I didn't assist him in fabricating his claims.
Complaint 5226: the Department referred a decision of the RRT in which the Tribunal recorded that the claimant had stated (at RRT's reasons [73]-[74]) that he had been told by "the lawyer" what to say at the hearing: the claimant was represented by the Applicant (see T 521).
The relevant part of the Tribunal decision is at T 521, [73]-[74]. The Tribunal raised some credibility issues with the applicant and said while it had not made up its mind, it needed to hear from him on some of its concerns. It then put three separate issues to him. The relevant parts of the decision are as follows:
[73] The applicant was asked if he wished to comment on the three issues raised, either immediately or to request more time to respond. After several minutes silence, the applicant said "let it go" several times. When asked to explain what he meant he said "I'm sorry". After another pause, the Applicant said "Right now I want to tell the truth. We are illegal migrants here, black people. That's the only way out, only one solution". Asked to elaborate on what this one solution was, the applicant said: "I was told by the lawyer that I can get a work visa here, I can make money".
[74] Asked whether the representative had told him to use these arguments, the applicant said "right". Asked whether that was in China or Australia, he said Australia. He said he was told he could get "work permission, Medicare, whatever, you name it". Asked if the representative had told him to say things that were not true. The applicant responded "the lawyer guaranteed me that I can get a work permission"...
The agent was the applicant's representative at the time of his Tribunal hearing: see application for review filed 7 January 2009, T 577 page 231.
APPENDIX 2 – MIGRATION AGENTS CODE OF CONDUCT
Relevant Extracts
2.1
A registered migration agent must always:
(a) act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently and fairly.
2.3
A registered migration agent's professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
2.3A
A registered migration agent's professionalism must be reflected in the making of adequate arrangements to avoid financial loss to a client, including the holding of professional indemnity insurance mentioned in regulation 6B for the period of the migration agent's registration.
2.4
A registered migration agent must have due regard to a client's dependence on the agent's knowledge and experience.
2.5
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.
2.7
A registered migration agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the client’s application:
(a) must give the advice, in writing, within a reasonable time; and
(b) may also give the advice orally to the extent that the oral advice is the same as the written advice; and
(c) must not hold out unsubstantiated or unjustified prospects of success when advising clients (orally or in writing) on applications under the Migration Act or Migration Regulations.
2.8
A registered migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b) act in accordance with the client’s instructions; and
(c) keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
2.9
A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
2.9A
In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.
2.17
If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a) must not encourage the client to lodge the application; and
(b) must advise the client in writing that, in the agent's opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application--must obtain written acknowledgment from the client of the advice given under paragraph (b).
2.18
A registered migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or the Migration Regulations must be submitted before a person's visa ceases to be in effect.
2.22A
A registered migration agent must, when providing translating or interpreting services, include on a prominent part of the translated document the following sequence:
(a) the name of the migration agent;
(b) followed by the words 'Migration Agent's Registration Number';
(c) followed by the agent's registration number.
2.23
A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
4.1
Before accepting immigration work, a registered migration agent must consider whether he or she is qualified to give the advice sought by the client. If the agent is unsure, he or she must seek the appropriate advice or assistance, or refer the matter to another registered migration agent.
5.2
A registered migration agent must:
(a) before starting work for a client, give the client:
(i) an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and
(ii) an estimate of the time likely to be taken in performing the services; and(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:
(i) the estimate of fees; and
(ii) the estimate of the time likely to be taken in performing the services; and(c) give the client written confirmation (an Agreement for Services and Fees ) of:
(i) the services to be performed; and
(ii) the fees for the services; and
(iii) the disbursements that the agent is likely to incur as part of the services; 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.
6.1
A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a) a copy of each client’s application; and
(b) copies of each written communication between:
(i) the client and the agent; and
(ii) the agent and any relevant statutory authority; and
(iii) the agent and the Department regarding the client; and
(c) file notes of every substantive or material oral communication between:
(i) the client and the agent; and
(ii) the agent and an official of any relevant statutory authority; and
(iii) the agent and the Department regarding the client.
6.1A
A registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.
6.2
A registered migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client and until the earlier of:
(a) 7 years after the date of the last action on the file for the client; or
(b) when the documents are given to the client or dealt with in accordance with the client 's written instructions.
7.4
A 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) statements of services; and
(e) copies of invoices or accounts rendered in relation to the account.
8.1
A registered migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.
8.2
A registered migration agent must properly supervise the work carried out by staff for the agent.
8.3
All immigration assistance must be given by a registered migration agent unless the assistance is permitted under section 280 of the Migration Act.
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