Xue and Migration Agents' Registration Authority
[2006] AATA 13
•11 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 13
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/753
GENERAL ADMINISTRATIVE DIVISION ) Re YONG XUE Applicant
And
MIGRATION AGENTS' REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date11 January 2006
PlaceSydney
Decision The decision under review is set aside and substituted for that decision is the decision that Mr Xue be cautioned pursuant to 303(c) of the Migration Act 1958. The caution will be lifted at the end of 12 months if Mr Xue completes the following as part of his continuing professional development requirement within that period. He must complete approved activities within the meaning of the Migration Agent Regulations 1998 relating to the Code of Conduct that have a value of at least 4 points.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
MIGRATION AGENTS’ REGISTRATION – complaints made against applicant in 2000 and 2001 – complaints of breaches of Code of Conduct – breaches found regarding Code of Conduct – breaches for failing to have receipts and invoices, not confirming instructions in writing and not providing a written statement of services – no other breaches found – decision set aside
LEGISLATION
Migration Act 1958 ss 303, 309, 314Migration Regulations (Cth) 1998, Schedule 2, Code of Conduct
Clauses of Code of Conduct 2.8 (a) and (b), 2.15, 2.17, 2.19, 2.23, 5.5, 7.4 (c) and (d) and 11.3
CASELAW
Briginshaw v Briginshaw (1938) 60 CLR 336
Hanna v Migration Agents Registration Authority (1999) 94 FCR 358
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Lilienthal and Migration Agents Registration Authority [2001] AATA 797
Griffiths and Migration Agents’ Registration Authority [2002] AATA 247REASONS FOR DECISION
11 January 2006 Senior Member Mrs Josephine Kelly Introduction
1. Mr Xue is appealing against the decision of the Migration Agents Registration Authority (“the Authority”) made on 6 June 2005 to cancel his registration as a migration agent (T3). The investigation of Mr Xue began in 2000 when one of his clients lodged a complaint.
The Issues
2. The case for cancellation pursuant to s 303(1) of the Migration Act 1958 (“the Act”) was put on behalf of the Authority on two grounds:
(a)that Mr Xue had not complied with a number of provisions of the Code of Conduct (“the Code”) prescribed under s 314 (see s 303(1)(h) of the Act), and
(b)that Mr Xue “is not a person of integrity” and “is otherwise not a fit and proper person to give immigration assistance” within the meaning of s 303(1)(f) of the Act.
The Evidence
Ms Cui’s Complaint (No. 556)
3. The Authority received a complaint from Ms Cui on 18 January 2000 (T6), which was restated in a further document (T9). She was dissatisfied with the service she had received from Mr Xue in relation to a translation, and review application of a refusal of a spouse visa in May 1998. She sought a refund of payments from Mr Xue which included $140 for the translation and Mr Xue’s fees of $1,500.
4. On 29 February 2000 Ms Cui provided a further letter to the Authority and included copies of receipts from Mr Xue for $140 (6 May 1998) and $2210 (11 May 1998) (T14). For that payment she said that all he did was forward an application to the Immigration Review Tribunal (“the IRT”) with an application fee. She also included a Commonwealth of Australia receipt for “application for review” for $850. She alleged that Mr Xue also made up a letter which was not consistent with what she had told him and which was not lodged with the IRT in any event. She cancelled his services in a face to face meeting and he returned to her what she had given him but could not refund the payment as he had no money on hand but promised to telephone when he had the money. During their last telephone contact on 12 January 2000 she said Mr Xue promised to refund the payment within three days. When she went to his office at the end of that period it was closed “and Mr Xue seemed to disappear without any information and al the communications was cut off”. It was then Ms Cui decided to lodge a complaint with the Authority.
5. In a letter dated 26 June 2000 Ms Cui elaborated upon her complaint and as requested by the Authority enclosed copies of various relevant documents (T19). She included allegations that he had threatened her a lot on the telephone when she requested her money back, including have a “gang fellow to go to smash your husband’s shop”, and that he would tell his friends in the immigration department that her marriage is false, ask them to refuse her visa, deport her back home under escort, and leave her with nothing. She included what she described as a “fabricated” letter from Mr Xue dated 12 May 1998 to the IRT which was never sent and her note dated 22 May 1998 advising the IRT that Mr Xue was no longer acting for her.
6. Mr Xue’s responses to the complaints (T10, T11, T12) were:
(a)He completed a translation for Ms Cui for which he charged $140. He was appointed her migration agent but never received payment for his services.
(b)He claimed that Ms Cui was agitated and disturbed and called him five times a day.
(c)He claimed Ms Cui’s allegations were outrageous and fabricated.
7. In response to the Authority’s request on 17 April 2000 for Ms Cui’s file, Mr Xue said that he did not have the file as Ms Cui had collected it from him, and he could not make a copy because she was agitated and “looked mentally or psychologically unstable” and she did not wont to leave a copy with me (T17). In a reply to the Authority’s letter dated 17 July 2000, Mr Xue stated that he had not issued an invoice and no payment was received for immigration services (T21).
8. Ms Cui wrote to the Authority about what was happening about her complaint on 1 November 2000 and 11 December 2000 (T22 and T24). On 27 February 2001 the Authority sent a letter to Mr Xue inviting him to make a submission pursuant to s 309(2) of the Act. The Authority’s letter referred to Ms Cui producing copies of the receipt from Mr Xue’s business for $2,210.00 for “IRT” and $140 for translations.
9. In response to that letter, Mr Xue telephoned the Authority on 7 March 2001 (T27). He advised that the letter had gone to his former address and that he had checked his records and found that he did receive the money he had previously denied receiving, that he had rung Ms Cui offering her a full refund but she was in a rush, he wanted to send it to the Authority but was advised to send it to Ms Cui and obtain proof of receipt. “Regarding, the alleged threats to the complainant, (Ms Cui) he said she happened to be quite difficult to deal with, there had been tension and an argument”. He was “very worried about a sanction”.
10. In a letter dated 11 March 2001 Ms Cui advised the Authority that “Before when I asked Yong Xin Xue return my money he said “if you again ask me to return the money. I will let my black society friends talk to you” (T28). She said that Mr Xue had recently called her many times and on 8 March 2001 he sent her a threatening letter (T28) and on 11 March 2001 went to her home “and forced me to finish the case between him and me and said if I don’t agree he will be back to China and never come back to Australia (indecipherable).” She listed 1 telephone call on 7 March 2001 and 3 telephone calls on 11 March 2001 from Mr Xue. In a letter dated 7 March 2001 she set out more detail about the call on that day (T28). She said that Mr Xue told her he had received a letter from the Authority, and if he had been told or given a copy of his receipt the matter would have been resolved. He wished to resolve the matter without involving the Authority. She did not want to have private contact with him “and abhor his harassment”.
11. Having received Ms Cui’s correspondence, the Authority sent a facsimile to Mr Xue advising that it would be unwise for him to contact Ms Cui and that he could send to the Authority the cheque made out to her (T29).
12. Mr Xue sent a response to the Authority dated 16 March 2001 (T30). He checked his receipt book as soon as he had received the Authority’s letter and upon finding the receipt for the $2210 he immediately sought to contact Ms Cui to refund the money. He said that he made a full apology to her on 7 March 2001 which she accepted. He asserted that when the argument began in 1998 about whether money had been received, his assistant had checked and said that there was no receipt. From then until the Authority’s most recent letter, he had believed that to be the case and Ms Cui did not wish to show him the receipt. He said that there were arguments between Ms Cui and him “in relation to how to work on her case, sometimes the arguments were explosive, bad languages were used by both sides, both side did not give in”. He admitted that he was wrong in not finding that the money had been received and was sorry for using bad language “but I never threat Mrs Cui.” He included a bank cheque for $1500 and a letter dated 15 March 2001 from Dr Roberts, psychiatrist, whom he had seen in 1995, 1996, 1999 and early 2000. He described Mr Xue as suffering from a mental condition in which anxiety, depression and obsessional symptoms are a feature.
13. In a letter dated 18 March 2001 (T31) Mr Xue sought to alter a paragraph of his letter dated 16 March 2001. He knew he had made a mistake and that he should be punished but that a caution matched the mistake he had made. If his registration were cancelled or suspended, he would be out of work.
14. In a letter dated 27 March 2001 (T34) Ms Cui stated that the payment was not sufficient and that she required payment of $140 for a translation that was not carried out. She also restated her position about what happened on 22 May 1998, 12 January 2000 and 7 March 2001.
15. The Authority advised Ms Cui that it had no power to order payment of money or negotiate on her behalf the amount and that she could accept the amount or take other steps. It ended by stating that it was continuing its investigation of her “serious allegations”.(T36)
Complaint 778
16. On 11 April 2001, the Department of Immigration and Multicultural Affairs (DIMIA) made allegations about Mr Xue to the Authority (T62). Ms Oi Lan Chan had withdrawn her application for refugee status on 14 March 2001 claiming that Mr Xue had submitted her application without her knowledge, and that later he told her not to attend an interview or respond to a letter from DIMIA (T62). She had only requested and paid him $330 to have her visa (Class 57 Visitor Long Stay) extended. An investigation within DIMIA had found details of five other people from the People’s Republic of China on short term visas who had used Mr Xue to submit their application for refugee status and whose claims for protection were identical, that is that they were Fa Lun La Fa (Fa Lun Gong) practitioners. DIMIA’s investigation of Ms Chan’s claims had determined that there was not enough evidence to prove any criminal offences had been committed, but the issues appeared to relate to the Code of Conduct.
17. A file note dated 28 September 2001 (T64) shows identical reasons for refusing the other applications for refugee status (Chan’s having been withdrawn).. None of these clients responded to invitations to attend interviews relating to their claims and did not attend. Their claims could not be checked and the applications were therefore refused.
18. On 24 October 2001 the Authority wrote to Mr Xue about the preparation of Protection Visa Applications in respect of Ms Chan, Yu Xia Wang, Shaolin Ding and Lie Qiu Lin (T66). The Authority said that it was open to it to be satisfied that he had breached several clauses of the Code, that it was considering cautioning him, suspending or cancelling his registration, and requested his response.
19. In his initial response dated 13 November 2001 (T67) Mr Xue stated that Ms Chan wanted to stay longer in Australia because her child was a student here. She had been told she could apply for a protection visa. He told her that the possibility of being successful “was very low”. She said to proceed and she would give him detailed reasons and information later on, which she did not. She did not ask him about having difficulty re-entering Australia after applying for such a visa, although she later knew that from another source which is why she withdrew her application. He attached a copy of his receipt for the $330 for the application for refugee status which included the correct visa number for a protection visa, “866”. He denied telling her not to attend the interview or respond to DIMIA’s letter. He described speaking to her on the telephone about the interview and saying that as she did not have good grounds for the application, it would make no difference whether she went or not. He claimed to have sent a fax to DIMIA confirming her withdrawal of her application, after she had already sent her letter of 14 March 2001 (T102). There is no copy of the withdrawal letter that Mr Xue said he sent to DIMIA. He asserted that Ms Chan’s account was untrue and that she was making herself look innocent and blaming him for everything. He was “deeply angered and frustrated” when he read Ms Chan’s letter, “her accusation is outrageous”. Although he believed it was fair that people could complain to the Authority, he thought the current arrangements were unfair because the people who complain lose nothing, whereas he has to spend a lot of time to prove the accusation is untrue without compensation. He detailed how much time he had spent on the current complaints and how much pressure he was under by his livelihood being threatened.
20. In relation to each of Yu Xia Wang, Shaolin Ding and Le Qiu Lin, Mr Xue stated that the following is “very close” to what happened with each of them. Many Chinese people want to apply for refugee status in Australia. They know that political reasons and Fa Lun Gong (a religion) are common grounds for such applications. They come in, say they want to apply and will provide detailed information later on, which they do not. They forget to give or do not wish to give their new address and telephone number when they move because they are fearful he might give information to DIMIA. Sometimes he cannot contact them. At times they came in near the expiry of their visas. Sometimes they signed a statement which he read to them.
21. He acknowledged that he should be more careful in the future and lodge applications after having detailed grounds.
22. On 16 November 2001 the Authority requested his original files in these matters.(T68). Mr Xue was invited to appear at a meeting of the Authority on 13 August 2002 (T37) which would consider the Li Cui matter and the protection visa cases, but he declined due to health reasons (T38 and T39), stating that he provided a “certificate “ from Dr Roberts. No such certificate is in evidence.
23. The Authority proceeded to consider the matters on 13 August and on 28 August 2002 requested an up-to-date report from Dr Roberts and further information from Mr Xue (T41).
24. On 12 November 2002, the Authority requested Mr Xue to answer a number of questions about three named individuals (Exhibit A1). Mr Xue responded in a statutory declaration dated 26 November 2002 that he had not heard of any of the people (Exhibit A2). By letter dated 25 May 2004, that is, eighteen months later, the Authority advised Mr Xue that it had decided “at this stage no further action will be taken regarding this complaint”.
25. An appointment was made for an interview with an officer in relation to Complaints 556, 778, 1601 and 1300 on 2 February 2004. The transcript of that interview is at T46. Only complaints 556 and 778 are the subject of these proceedings.
26. In his most recent report dated 2 March 2004, Dr Roberts gave the opinion that Mr Xue suffers from an Obsessive Compulsive Disorder but that it had apparently spontaneously stabilised and settled at a lower level (T50). This opinion was given with the knowledge of the complaints being investigated by the Authority. The doctor did not consider that the condition would impede Mr Xue’s ability to understand his ethical obligations to his clients or prevent his undertaking his work tasks, and any assessment of his capacity to function as a migration agent should be made not taking account of his psychiatric status.
27. Apparently on 5 July 2004, the Authority sent Mr Xue its findings in relation to Complaint 778 relating to Ms Chan and Yu Xia Wang, Shaolin Ding and Lie Qiu Lin with a request that he respond by 26 July 2004 (T90). He responded on that day (T94) and enclosed a cheque for $300 made out to Ms Chan, which was later returned to him by the Authority as it did not have a current address for her (T96).
Consideration
28. Following is my consideration of each alleged breach of the Code and the question of whether Mr Xue is not a person of integrity or otherwise not a fit and proper person to give immigration assistance, as those matters were put to me at the hearing. In coming to the conclusions that I have, I have applied the standard of proof enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336, as applied by Tamberlin J in relation to complaints against a migration agent (see Hanna v Migration Agents Registration Authority (1999) 94 FCR 358). I have also followed his Honour’s guidance in relation to the interpretation of the Code as set out in that decision at paragraphs 20-32, that is in summary that the duty must be clearly spelt out and caution should be exercised before introducing language which the legislature has not chosen to use.
Ms Cui
29. A migration agent must not intimidate any person (cl. 2.15 of the Code). There is evidence from Ms Cui that Mr Xue threatened her, which he denies. During the course of the hearing, Mr Cox who appeared for the Authority conceded that the letter which Ms Cui claimed was threatening (p 93 of the T documents) was not. There is no translation of this letter in evidence. Putting aside the question of whether she was truthful, that concession gives rise to a doubt in my mind whether Mr Xue’s conduct towards her was ‘threatening’ as she alleges. Ms Cui was not called to give evidence. Clearly relations between her and Mr Xue were tense and there were heated arguments, both having entrenched positions. Mr Xue’s position was taken and maintained unwisely. He should have checked his documents and not relied on what his assistant had told him. The original dealings with Ms Cui occurred over about a three week period in May 1998 and Mr Xue had no records of what he did, including no file notes, apart from a record of payment. While he did not behave well in relation to this matter, the allegation of intimidation is a very serious one. On the evidence, I do not find that Mr Xue was not telling the truth when he denied threatening Ms Cui. Accordingly, I do not make the finding sought by the Authority.
30. Clause 2.23 of the Code at all relevant times stated that a Migration Agent must take all reasonable steps to maintain the reputation and integrity of the migration industry. The Authority argued that Mr Xue attempted to mislead the authority on two occasions by denying that he had received fees for immigration services provided to Ms Cui.
31. He did not admit having received the payment until he was provided with evidence of a receipt. However, I accept that Mr Xue’s failure to acknowledge that he had received the fees was because he relied on what an assistant had told him and he did not check his records himself. I find that he did not knowingly mislead the Authority. He was involved in a dispute with a former client which threatened his livelihood. In my opinion, although he would have been wise to make sure of his ground, I accept that he genuinely believed that he was right and he was entitled to maintain that position until some evidence was provided to him that he was wrong. I do not find that his conduct constituted a breach of clause 2.23 of the Code.
32. Clause 7.4 of the Code relevantly required a migration agent to keep records of the client’s account including:
(c) Receipts for any payments made by the client to the agent; and
(d) Copies of invoices or accounts rendered in relation to the account.
33. I find that Mr Xue did not comply with cl. 7.4(c) and (d) in relation to Ms Cui’s application. He did not have a copy of the receipts and no invoices or accounts were produced by him in relation to the matter.
Ms Chan
34. The Authority contended that Mr Xue breached clause 2.8 (a) and (b) of the Code because he did not confirm Ms Chan’s instructions in writing, and did not act in accordance with her instructions. I find that he did not confirm her instructions in writing and therefore did breach clause 2.8(a). I am not persuaded that he did not act on her instructions. She wanted to pursue a protection visa until she found out that there may be adverse consequences for her. I do not find that there was a breach of cl. 2.8(b).
35. The Respondent contended that Mr Xue breached clause 2.17 of the Code because he did not make written confirmation of the advice given to Ms Chan that the prospects of her application were very low which indicates that he does not understand his obligations under 2.17 of the Code.
36. Mr Xue advised Ms Chan that prospects of success were low for people from China generally. She did not provide details of the basis of her claim before the application was made (and subsequently withdrawn). Accordingly, Mr Xue was not in a position to have formed a view that her claim was vexatious or grossly unfounded when the application was lodged. Therefore, I do not find that Mr Xue breached cl. 2.17 in relation to that application.
37. The Authority alleged a breach of cl. 2.19 of the Code because Mr Xue applied for Ms Chan’s protection visa without any supporting evidence or relevant information such that a full assessment of the facts against the relevant criteria could not be carried out and the application would be prejudiced. Mr Xue’s position was that Ms Chan had promised to provide details but never did, and indeed she withdrew the application. The clause provides:
Subject to a client’s instruction, a migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, …
38. I accept that Mr Xue acted in good faith in accordance with his client’s instructions as set out in his file note (T70 p 257). I do not consider that the provision is intended to penalise a migration agent who accepts a client’s promise which is not made good. If Ms Chan had provided the details she had promised and that material had been lodged in support of the application, there would not have been a breach. The provision does not require the lodgement of all information at the time the application is lodged. Mr Xue’s conduct was not in breach of this provision.
39. In essence, cl. 5.5 of the Code requires that a statement of services including details of the service performed must be provided to a client before a migration agent is entitled to be paid a fee. In Ms Chan’s case the only document that came into existence when the application was made (apart from the application) was a receipt for the sum of $330 “being for 866”. While that number may mean “protection visa” to people with knowledge of the migration regime, it does not conform to the requirements of cl. 5.5. I also infer that the receipt came into existence after Ms Chan had paid whereas cl. 5.5 requires a statement to be provided before entitlement to payment arises. Mr Xue has failed to comply with 5.5 of the Code.
40. Clause 7.4(d) of the Code referred to above requires a migration agent to keep copies of invoices or accounts rendered. Mr Xue did not keep copies of invoices as he did not usually issue them because his “business is a very small one” (T46 p 160). In Ms Chan’s case he had no copy of an invoice. He failed to comply with cl. 7.4(d).
Yu Xia Wang, Shaolin Ding and Lie Qiu Lin
41. The Authority also alleged before me in relation to Yu Xia Wang, Shaolin Ding and Lie Qiu Lin, that Mr Xue either encouraged the lodging of vexatious or grossly unfounded applications or he did not advise his clients the applications were vexatious or grossly unfounded and obtain written acknowledgment of that advice contrary to cl. 2.17 of the Code. The Authority itself made no such finding.
42. I am not persuaded that the evidence establishes that Mr Xue had information when he lodged the applications that established that they fell into the alleged category of applications. Rather, these applications fell into the general category Mr Xue described as set out earlier where he was not provided with details which were promised and current addresses and telephone numbers. The statements signed by each of the applicant’s and Mr Xue’s file notes support his evidence that further details were promised (T74: Shaolin Ding p 259 and 260; Lie Qin Lin p 261 and 262 and Yu Xia Wang p 263 (file note only)).
43. Further, there is no evidence that Mr Xue encouraged the lodgement of the applications (see Shi) as I found was necessary in Shi v Migration Agents Registration Authority [2005] AATA 851. I am not satisfied on the evidence that Mr Xue acted contrary to cl. 2.17 in relation to these applications.
44. As in the case of Ms Chan, the Authority alleged Mr Xue breached cl. 2.19 of the Code by not providing the relevant material in relation to these applications. Each of the statements that was provided differed in no significant respect (T110 p 366 statement of Ms Yu Xia Wang), (T115 p 395 statement of Shaolin Ding), (T120 p 423 statement of Lie Qiu Lin). However, as already stated each had promised further details which did not appear. For the reasons already given in relation to Ms Chan, Mr Xue did not breach cl. 2.19 of the Code in relation to these applicants.
45. The Authority contends that Mr Xue breached Clause 11.3 of the Code because he does not indicate that he issues a formal contract to his clients with a statement explaining the existence and purpose of the Code of Conduct. Clearly from the interview Mr Xue does not comply with this clause. He said: “With some clients we do at certain stage we may talk about Code of Conduct … so with some of them, yes, I did talk to them about the Code of Conduct”.
46. The final argument relied upon by the Authority was that Mr Xue is not a person of integrity or otherwise not a fit and proper person to give immigration assistance (s 303(1)(f) of the Act). That conclusion was based on the following:
(a)Mr Xue failed to deal with his clients competently and diligently;
(b)Mr Xue lodged multiple vexatious and grossly unfounded protection visa applications;
(c)Mr Xue made statements in support of the aforementioned protection visa applications or encouraged the making of such statements when the Applicant knew or believed those statements to be misleading or inaccurate;
(d)Mr Xue provided information to the Department on the aforementioned protection visa applications, which prejudiced the prospects of approval. In this regard Mr Xue may not have provided sufficient relevant information to the Department in the aforementioned protection visa applications to allow a full assessment of the facts against the relevant criteria; and
(e)
Mr Xue did not take all reasonable steps to maintain the reputation and integrity of the migration industry.
47. It was said to follow that Mr Xue’s conduct represents a lack of “soundness of moral principle and character, uprightness and honesty” which satisfies the definition of “integrity” given in Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 at paragraph 26.
48. Finally, the Authority argued that Mr Xue’s conduct may be reasonably regarded as disgraceful or dishonourable by migration agents of good repute and competency. Accordingly, the test of unfitness in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 would be satisfied.
49. Mr Xue, who appeared for himself, pointed out that the only complaints against him occurred in 2000 and 2001 and that he has been permitted to continue practising as a migration agent until 2005. His firm view was that if the business practices of any migration agent were put under the microscope as his had been, the Authority would find non-compliances with the Code such as the Authority had found in his case. Even if there were non-compliances, the agent may still be a good person who can practice in the migration area. He said that it was important that the interests of the client be protected, but the Code was one-sided in favour of the Authority.
Conclusion
50. I have not made the same findings that the Authority found and relied upon. I have found that Mr Xue has breached various provisions of the Code which is a serious matter. I adopt the principles discussed in relation to “integrity” and “fit and proper person” in Lilienthal and Migration Agents Registration Authority [2001] AATA 797 at paragraphs 18 to 25. On the evidence before me and the findings I have made, I am not satisfied that Mr Xue is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
51. The purpose of disciplinary proceedings under the Act is to protect the public and to maintain proper standards amongst migration agents, not to punish an agent (Griffiths and Migration Agents’ Registration Authority [2002] AATA 247 at paragraph 28). I do not consider that the decision to cancel Mr Xue’s registration was the proper or correct decision and accordingly I set it aside.
52. I take into account that Mr Xue has not been able to practice as a migration agent since the cancellation of his registration. The request for a stay of the decision was refused on 8 July 2005. I also take into account that he has practised as a migration agent for 10 years and on the evidence the only complaints against him that the Authority has found are those that I have dealt with which arose in 2000 and 2001. I also take into account that it was not until June 2005 that the Authority took acted to cancel Mr Xue’s registration on the basis of those complaints. That is, the Authority permitted him to continue practising without sanction for another four years.
53. Given the breaches of the Code that I have found, I consider that it is appropriate to caution Mr Xue pursuant to s 303(c) of the Act subject to conditions imposed pursuant to s 304A. Although Mr Xue and perhaps others believe the Code is too stringent, it is the law and must be complied with.
Decision
54. The reviewable decision is set aside and substituted for that decision is the decision that Mr Xue be cautioned pursuant to 303(c) of the Act. The caution will be lifted at the end of 12 months if Mr Xue completes the following as part of his continuing professional development requirement within that period. He must complete approved activities within the meaning of the Migration Agent Regulations 1998 relating to the Code of Conduct that have a value of at least 4 points.
I certify that the preceding 54 paragraphs are a true copy of the reasons for the decision herein of
Senior Member Mrs Josephine KellySigned: Miss Sacha Keady
AssociateDate/s of Hearing 31 October 2005
Date of Decision 11 January 2006
Advocate for the Applicant Self Represented
Solicitor for the Respondent Phillips Fox
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