Yildiz and Migration Agents Registration Authority - [2020] AATA 3744

Yildiz and Migration Agents Registration Authority [2020] AATA 3744 (30 July 2020)
Division:GENERAL DIVISION
File Number: 2018/6338
Re:Sema Yildiz
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Ms Anna E Burke AO, Member
Date:30 July 2020
Place:Melbourne

The Tribunal affirms the reviewable decision made on 12 October 2018, being the decision of the Migration Agents Registration Authority to cancel the registration of
Ms Yildiz as a registered migration agent under section 303 of the Migration Act 1958 (Cth).
.................[sgd].......................................................
Ms Anna E Burke AO, Member
Catchwords
MIGRATION AGENTS REGISTRATION – review of decision to cancel registration – where complaints made in relation to applicant’s conduct – whether applicant is a person of integrity – whether applicant breached the Code of Conduct for registered migration agents – where applicant failed to act in accordance with the legitimate interests of her clients and deal with the client competently, diligently and fairly - whether such failure is sufficient to warrant cancellation of registration– decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Migration Agents Regulations 1998
Cases
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
O’Rourke v Miller (1985) 156 CLR 342
Shi and Migration Agents Registration Authority [2005] AATA 904
Shi v Migration Agents Registration Authority [2008] HCA 31
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540
Twentyman v Secretary, Department of Social Services [2018] FCA 1892; (2018) 163 ALD 517
Secondary Materials
Code of Conduct for Registered Migration Agents, 18 April 2017
REASONS FOR DECISION
Ms Anna E Burke AO, Member
30 July 2020
BACKGROUND

The Migration Act 1958 (Cth) (the Act) provides a scheme whereby suitably qualified persons may be registered as migration agents. The Act also establishes a regulatory body, the Migration Agents Registration Authority (MARA) which is charged with the administration of the scheme. MARA is the Respondent in these proceedings.
Once an individual is registered as a migration agent they are required to conform to all requirements of the Act and the Migration Regulations 1994 (Cth) (the regulations). In addition, they are bound to conform to the Code of Conduct for Registered Migration Agents (the Code).
The Act further provides for a system whereby complaints may be lodged against a migration agent for failure to operate according to the requirements of the legislation, the regulations or the Code. Those complaints may be investigated by MARA and if substantiated may result in penalties or sanctions being imposed on the agent. Decisions of MARA are reviewable by the Administrative Appeals Tribunal.
Ms Yildiz was formally registered as a migration agent on 15 January 2013 and had been renewed annually. She lodged her latest application for registration on 12 January 2018. MARA received four complaints against Ms Yildiz from four separate clients between
21 March 2017 and 21 November 2017. On each occasion
MARA issued a notice to

Ms Yildiz, pursuant to s 308 of the Act requiring her to provide certain details and responses to MARA in respect of the complaints made against her. The notices also required Ms Yildiz to provide to MARA the relevant documentation in respect of each client.
On 12 October 2018 MARA made a formal decision under the Act to cancel the Applicant’s registration. Under s 292 of the Act, an agent who has had their registration cancelled must not be registered for a period of five years commencing on that date. MARA found that on the evidence before them they were satisfied Ms Yildiz had breached clauses 2.1, 2.8, 2.9, 2.9 A, 2.15, 5.2, 6.1, 6.1 A, 10.2, 10.5, and 10.6 of the Code, and were also satisfied that Ms Yildiz was not a person of integrity or otherwise not a fit and proper person to give migration assistance under s 303(1)(f) of the Act. MARA, having considered the complaints, was satisfied that Mrs Yildiz:
• Failed to provide Mr [H]'s documents to his new legal representative in a timely manner, and failed to act diligently, fairly, and in the legitimate interests of Mr [H] and Ms [Z] to ensure they were not disadvantaged at the scheduled Protection visa interview. I am also satisfied that the Agent acted without Mr [H] and Ms [Z] knowledge or permission by lodging documents after being notified of the termination of her services, in order to conceal failures in her practice;
• Failed to maintain sound recordkeeping practices with regards to her interactions and correspondence with clients;
• Did not lodge [AS’s] Child visa application in a timely manner and misled Mr S as to the status of the application and failed to keep him fully informed of its progress;
• Provided application forms containing forged signatures to the Department in the Child visa application for [AS], that she prepared and lodged on the clients' behalf without their knowledge and permission;
• Has attempted to mislead the Authority in relation to a number of matters, in order to conceal her conduct, including failures in her practice and fraudulent activity; and
• Attempted to coerce complainants into withdrawing their complaints submitted to the Authority regarding her conduct, and in the case of Mr [S], by threatening to withdraw the visa application without his permission.
On 29 October 2018 Ms Yildiz lodged an application for a review of that decision with the Administrative Appeals Tribunal claiming the decision was wrong stating:
The evidence that they have requested I have provided has been assessed nor looked I believe it has not been investigated as it should have been. The complaint were done different years and time that they kept on loop for long time and it should have bene processed as certain time there should have bene request further or should have looked at different case to case wasn’t happy the way it was handled and the process it self.
PROCEDURAL FAIRNESS
At the commencement of the hearing Mr Poynder, counsel for Ms Yildiz, raised the valid question of procedural fairness, given the volume and complexity of material before the Tribunal in respect of the allegations against Ms Yildiz and the significant consequences to Ms Yiidiz’s livelihood and reputation. Mr Poynder indicated at the outset that he would be objecting to material evidence put to Ms Yildiz that was not able to be substantiated by cross-examination, particularly in relation to issues relied upon by MARA in its determination to cancel Ms Yildiz’s registration.
Mr Poynder argued that there were factual issues in respect of Ms Yildiz’s case which were of such significance, citing the allegation of fraud (the accusation of forging clients signatures) and lying to her clients, that it would be procedurally unfair for the Tribunal to rely upon that material without having the complainants present at the hearing. Mr Poynder acknowledged that while it has long been recognised that common law concepts such as onus of proof are not necessarily appropriate in administrative decision making, he contended the position may be somewhat different in disciplinary proceedings. Taking the Tribunal to the matter of Sullivanv Civil Aviation Safety Authority (2014) 141 ALD 540 (Sullivan) at [111] where their Honours Flick and Perry stated:
Some findings of fact, however, have been long-recognised as calling for considerable caution before being made and for care being exercised in respect to the evidence upon which the finding is made. Findings as to a party or a witness having engaged in fraud or having lied are but examples. These requirements have been variously expressed.
Mr Poynder went on to emphasise that in a case such as the present, there will be an onus on the respondent to produce sufficient evidence to make good its allegations, taking the Tribunal to the matter of Shi and Migration Agents Registration Authority [2005] AATA 904 (Shi) where Senior Member Kelly stated:
Mr Poynder argued that an onus lies on MARA in relation to each allegation. In the absence of a statutory provision imposing an onus of proof on MARA, such as s 61 of the Freedom of Information Act, 1982, I do not consider that there is an onus on MARA to establish that its decision was justified. However, as a matter of practicality and common sense, if MARA is seeking to have the Tribunal affirm its decisions, it has to put before me the evidence to enable me find that is the correct or preferable decision.
Mr Poynder then addressed the standard of proof, again recognising that common law concepts, such as that enunciated by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw), will not apply directly to a case such as the present; however arguing that in a case where such grave consequences may arise that to act on inexact proofs may not be reasonable, referring to Sullivan at [16] where His Honour Justice Logan stated:
In resolving justiciable controversies by a final judgement, a court is constrained to act on admissible evidence. An administrative decision-maker is not so constrained, as s 33(1)(c) of the AAT Act makes plain in respect of the Tribunal. However, an administrative decision-maker must act reasonably. As Pochi illustrates, there are particular kinds of administrative decisions which are attended with such grave consequences that to act on “inexact proofs, indefinite testimony or indirect references” (to borrow from Briginshaw at 362) may not be reasonable. What was said in Briginshaw is applicable only by analogy for the reminder it offers about what may be necessary in particular kinds of case to induce reasonable satisfaction in the mind of a decision-maker. It is not necessary for a decision-maker overtly to refer to Briginshaw, only that it be apparent from the reasons given that the decision-maker is aware of that conclusions carrying grave consequences ought not lightly to be made.
Mr Poynder finally turned to the s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, (AAT Act) which clearly states that the Tribunal is not bound by the rules of evidence. However he argued, correctly, that it is bound by s 2A of the AAT Act to provide “…a mechanism of review that is fair, just…” and, under s 39(1), it must “…ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case”. Taking the Tribunal again to the matter of Sullivan where Flick and Perry JJ, at [93]-[94], considered it had “long been recognised” that:
…the reasons standing behind the common law rules of evidence may guide an administrative tribunal in the procedure which best facilitates the discharge of its statutory functions. In many instances, the common law rules of evidence are founded upon principles of common sense, reliability and fairness.
Flick and Perry JJ also said, at [164]:
The Tribunal was not “bound by the rules of evidence”. But it was bound in carrying out its review function to proceed in a manner which was “fair just, economical, informal and quick” and was further bound to ensure that Mr Sullivan was given “a reasonable opportunity to present his … case” (Administrative Appeals Tribunal Act s 39). Subject to those requirements, the procedure of the Tribunal was within its own discretion.
Mr Poynder’s fundamental assertion was that his client would not be afforded procedural fairness if material evidence put to her in the proceedings could not be tested and then supported by way of cross-examination. Mr Yuile contented on behalf of the Respondent that notions of proof and onus should not distract the Tribunal from the question before it which is whether, on the evidence before it, it is satisfied that there have been breaches of the Code and if so satisfied, then the question of penalty will arise. Referring to the matter of Shi Mr Yuile contented that Mr Poynder had to some extent accepted there was no onus on the Tribunal. Noting the Member in their determination had expressly rejected the proposition stating: “I do not consider that there is an onus on MARA to establish that its decision was justified.” Mr Yuile next took the Tribunal to Sullivan where he argued the Full Court expressly rejected the submission that the “Briginshaw v Briginshaw rule” applied to the Tribunal. Noting the statutory context for the Tribunal, Flick and Perry JJ said at [116]:
What procedure the Tribunal decides to follow in any particular case, and whether the Tribunal decides to either apply or inform itself by reference to the common law rules of evidence, is a matter which has been left by the legislature to the Tribunal itself to determine. The manner in which the Tribunal proceeds cannot, with respect, be pre-determined by any generally expressed “principle of law” which is to be applied to some indeterminate fact findings which may be characterised as “grave” or “serious”.
Mr Yuile noted that, of course, it is the case that the Tribunal must act fairly and rationally and must allow the applicant a reasonable opportunity to present her case. But at the end of the day, the Tribunal must simply assess whether it is satisfied of the factual matters to be made out. In carrying out that task, it is beyond argument that the rules of evidence do not apply in the Tribunal and thus, subject to the requirements of the AAT Act, the procedure to be followed by the Tribunal is a matter of discretion.
Mr Yuile rejected Mr Poynder’s assertion that the principles of procedural fairness “would require” a party to be able to cross-examine a person on their evidence, arguing it was not an accurate reflection of what was said by Flick and Perry JJ in Sullivan. He noted that their Honours had found that “administrative decision-makers bound by the common law rules of natural justice or procedural fairness are not required in all circumstances to permit cross-examination”. Particularly where their Honours cited from O’Rourke v Miller (1985) 156 CLR 342, which rejected a general proposition that, as a matter of natural justice, a person the subject of allegations would always have to have the opportunity to cross-examine accusers.
Indeed, Mr Yuile argued that given this was not the first occasion that the allegations were being put to Ms Yildiz, as MARA had a requirement to put to her the allegations and allow her an opportunity to reply before it made its determination, she would not be denied natural justice in this matter as there was nothing new being put to her in these proceedings. Mr Yuile argued that Ms Yildiz had availed herself of numerous opportunities to interact with MARA to contest the allegations made by her former clients. Based upon these considerations, Mr Yuile contended that MARA had found that several of the allegations made against Ms Yildiz by her former clients had not been substantiated.
Mr Yuile contended that it follows that where witnesses are not available for cross-examination, this may be considered by the Tribunal in making its findings. Arguing it may (not must) impact on the weight to be given to evidence by the Tribunal, and in turn might impact the Tribunal’s satisfaction of facts. But there is no general proposition that cross-examination must occur, that natural justice will not have been provided without cross-examination, or that any evidence given without the source of the evidence available for cross-examination must be rejected.
The Tribunal, having considered the contentions put by both representatives, fundamentally observed that the procedure to be followed is a matter for the Tribunal, in accordance with the requirement of s 2A of the AAT Act:
Tribunal's objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
The Tribunal also refers to the decision of Twentyman v Secretary, Department of Social Services [2018] FCA 1892; (2018) 163 ALD 517, cited by both representatives, where his Honour Justice Wigney considered these contentions at length:
Does the rule in Browne v Dunn apply to review proceedings in the Tribunal?
In Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) held that the rule in Browne v Dunn had no application in proceedings in the (then) Refugee Review Tribunal. Their Honours said (at [55]-[57]):
On occasion the submissions advanced for the prosecutrix were couched in the language of a contention that the rule in Browne v Dunn had not been complied with. Where a complaint is made about the failure of a questioner to put to a person giving oral answers a particular question, it is natural for a lawyer’s mind to turn to the rule in Browne v Dunn. In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness.
However, the rule has no application to proceedings in the tribunal. Section 420(2) of the Act states:
The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, as was emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.
Accordingly, the rule in Browne v Dunn has no application to proceedings in the tribunal. Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no “client”, and has no “case” to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client’s cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; it was not part of the function of the tribunal to seek to damage the credibility of the prosecutrix’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.
(Footnotes omitted)
….
In those circumstances, it has been said that, despite what was said in S154/2002, the rule in Browne v Dunn may apply in proceedings in the Tribunal, though its application must depend on the particular circumstances of the case: Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 467 at 473; 3D Scaffolding at [21]; Mautner v Minister for Immigration and Citizenship [2009] FCA 1475; (2009) 112 ALD 518 at [19]; Calvista Australia Pty Ltd v Administrative Appeals Tribunal [2013] FCA 860; (2013) 216 FCR 32 at [116].
More recently, however, it appears to have been accepted that the observations of Gummow and Heydon JJ in S154/2002 do relevantly apply to proceedings in the Tribunal, and that the rule in Browne v Dunn has no application in such proceedings: Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [149]-[151] (per Flick and Perry JJ); Millar v Commissioner of Taxation (2015) 101 ATR 827 at [139]. As Griffiths J pointed out in Millar (at [139]), the rule in Browne v Dunn is a rule of evidence, and the Tribunal is not bound by the rules of evidence: see s 33(1)(c) of the AAT Act. Section 33 of the AAT Act is in relevantly similar terms to s 420 of the Migration Act 1958 (Cth), the provision referred to by Gummow and Heydon JJ in S154/2002.
It is ultimately unnecessary to resolve any possible conflict between the decisions in 3D Scaffolding and Calvista on the one hand, and Sullivan and Millar on the other. That is because the rule in Browne v Dunn is essentially a rule which is designed to secure procedural fairness in adversarial proceedings. There is no doubt that the Tribunal must afford the parties to the review procedural fairness. Even if the rule in Browne v Dunn may not strictly apply in proceedings in the Tribunal, there undoubtedly may be circumstances where it would be a denial of procedural fairness for the Tribunal to make a finding of fact contrary to the evidence of a witness in circumstances where that finding was not put to the witness: see S154/2002 at [58] (per Gummow and Heydon JJ); Sullivan at [48]-[49] (per Logan J). The preferable approach is to address any issue arising from the failure to cross-examine the witness by reference to the principles of procedural fairness, without recourse to the rule in Browne v Dunn. As Robertson J put it in Calvista (at [118]), “... in light of the origins of the rule [in Browne v Dunn] ... it is apt to mislead and to give proceedings in the Tribunal an unwarranted curial gloss to refer to principles of procedural fairness as they operate in the Tribunal by reference to Browne v Dunn”; see also Anovoy Pty Ltd v Federal Commissioner of Taxation (2000) 44 ATR 507 (appeal allowed on other grounds: Federal Commissioner of Taxation v Anovoy Pty Ltd (2001) 47 ATR 51) at [30]. That statement was endorsed by Flick and Perry JJ in Sullivan at [149].
Does s 2A of the AAT Act import a rule akin to Browne v Dunn?
As has already been noted, s 2A of the AAT Act obliges the Tribunal to provide a mechanism for review which is, amongst other things, fair. Section 2A, however, is “properly [to be] regarded as aspirational or exhortatory in nature, rather than as a source of directly enforceable rights and obligations”: Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [80]; see also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [108] (per Gummow J). It is, in those circumstances, difficult to see how s 2A could be said to be the source of any particular or specific obligation to cross-examine a party or witness.
In any event, as has already been said, there is no doubt that the Tribunal must afford procedural fairness to the parties to the review. It does not necessarily follow, however, that a failure by one party to cross-examine a witness in accordance with the rule in Browne v Dunn will necessarily give rise to a failure to give effect to s 2A of the AAT Act, or a denial of procedural fairness. Much will depend on the particular circumstances of the case.

The Tribunal concurs that much will depend on the particular circumstances of the case and agrees with Mr Poynder that the outcome of this matter has significant bearing upon Ms Yildiz’s livelihood. The Tribunal was therefore mindful of s 2A(c) of the AAT Act during the proceedings. However, in accordance with the decision cited above that because the rule in Browne v Dunn is essentially a rule designed to secure procedural fairness in adversarial proceedings, which is obviously not the case in the Tribunal, that it was not procedurally unfair to Ms Yildiz to hear the matter without all the complainants being present for cross-examination. The final determination will be a matter of weight the Tribunal puts on the matters which have been alleged and canvassed in the MARA decision, based upon the evidence put during the hearing. The Tribunal then proceeded on the basic premise of any hearing before it, that it must indeed be procedurally fair to all the parties to the review.
LEGISLATIVE FRAMEWORK
Section 303 of the Act provides for the disciplining of registered migration agents. It states:
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
Section 314(1) of the Act provides that the Regulations may prescribe a Code of Conduct ("the Code") for migration agents. Section 314(2) of the Act provides that a migration agent must conduct him or herself in accordance with the Code. The Code is set out in Schedule 2 of the Regulations.
The Code includes the following relevant clauses:
Part 1 - Introduction
1.11 The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible registered migration agent.
1.12 However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent's client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.
Part 2 - Standards of professional conduct
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.
However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.
2.1A A registered migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:
(a) the agent has had previous dealings with the person, or intends to assist the person, in the agent’s capacity as a marriage celebrant;
(d) there is any other interest of the agent that would affect the legitimate interests of the client.
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.
2.15 A registered migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a registered migration agent must not engage in any of the following:
(a) undue pressure;
(b) physical threats;
(c) manipulation of cultural or ethnic anxieties;
(d) threats to family members in Australia or overseas;
(e) untruthful claims of Departmental sanctions;
(f) discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender.
Part 5 — Fees and charges
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.
Part 6 - Record keeping and management
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;
(ii) the agent and 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.
Part 10 -Termination of services
10.2 A client is entitled to ask a registered migration agent (orally or in writing) to return any document that belongs to the client. The agent must return the document within 7 days after being asked.
10.5 On completion of services, a registered migration agent must, if asked by the client, give to the client all the documents:
(a) given to the agent by the client; or
(b) for which the client has paid.
10.6 If the client terminates the instructions, a registered migration agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner.
ISSUES
The Tribunal needs to consider:
(a)whether Ms Yildiz has breached the Code of Conduct for Registered Migration Agents prescribed under the Act; and if so;
(b)what the appropriate penalty should be.
EVIDENCE
The evidence before the Tribunal included documents produced pursuant to s 37 of the AAT Act (the “T‑documents”), a witness statement form Mr S and numerous statements from Ms Yildiz which are contained in the T-documents. Mr S and Ms Yildiz gave evidence in person at the hearing. Ms Yildiz also gave evidence by videoconference on the second day of the hearing.
For ease of understanding, the Tribunal has grouped the evidence before it under the headings of the four complaints made against Ms Yildiz, deriving the following information from the delegates decision to cancel her registration dated 12 October 2018 and Mr S and Ms Yildiz’s written and oral evidence:
First complaint
MARA’s decision stated:
On 21 March 2017 the Authority received a complaint from Mr [H], who alleged that:
• He engaged the Agent's services on two separate matters, firstly to assist in preparing Protection visa applications for him and his wife, Ms [Z], and subsequently to prepare Visitor visa applications for a number of his family members in Iran.
• He paid the Agent the entire amount stipulated in both Service Agreements, totalling $13,500 but she had failed to continue working on the applications, which had left him in limbo. He had contacted her to obtain a full refund in relation to both Service Agreements but had not received any response from the Agent at the time of lodging the complaint.
• The Agent had refused to reply to emails and phone calls over the period of a few months, regarding Mr [H's] application, which she had lodged with the Department of Home Affairs (the Department). After several phone calls, he realized she did not want to continue working on his application and decided to engage a new registered migration agent, Mr Peter Bollard.
…
• The Agent failed to respond to Mr Bollard's email request to obtain Mr [H's] documents and refused to provide any paperwork. As a result, Mr [H] and his wife had to attend their Protection visa interviews without an agent, as Mr Bollard advised he could not be of much assistance without the documents before him, and as the Agent refused to attend in his absence.
Mr H, following his engagement of a new representative, Ms Hoda Shafizadeh, on 29 May 2017, made subsequent allegations to the Authority on 5 June 2017. These subsequent allegations indicated that the Agent:
• Did not issue a Service Agreement in relation to the services provided for Mr [H] and Ms [Z's] permanent Protection visa (PPV) applications, nor did she issue a copy of the consumer guide;
• Failed to provide frank and candid advice to Mr [H] regarding the prospect of success of lodging Visitor visas for his family members while his PPV application and that of Ms [Z], were under processing by the Department;
• Did not lodge a statement of claims for Ms [Z];
• Was complicit in the fabrication of protection claims relating to Christian conversion in Mr [H's] statement of claims, despite the fact that both he and his wife state they are Muslim, and
• Did not lodge applications for work rights when requested by Mr [H].
…
Departmental Records
Protection visa application
Departmental records show that Mr [H's] subclass 457 visa ceased on 6 October 2015. A PPV (subclass 866) application for Mr [H] and his wife Ms [Z] was received by the Department on 29 October 2015 at the Sydney office. No separate statement of claims was included with the application at time of lodgement. The application, which included a Form 956 nominating the Agent as the clients' registered migration agent, was deemed to be invalid on 6 November 2015 as the base application charge could not be paid with the details provided. The application was re-lodged with updated credit card details and a statement of claims for Mr [H] was received on 2 December 2015 at the Department's Melbourne office, before being sent to the Sydney office for processing due to Mr [H] and Ms [Z's] residential location.
An email was sent to the Agent on 4 December 2015 advising that the PPV application received on 2 December 2015 was missing a Form 866C for Ms [Z], and that she would not be able to be included in the application until this was received. The Agent was also called by a departmental officer on 14 April 2016 regarding the outstanding Form 866C for Ms [Z], with a message left to return the call. Departmental records indicate that she was also contacted by case officers for a third time regarding Ms [Z's] Form 866C on 17 January 2017, prior to the rescheduled interview appointment request being sent to the Agent.
In responding, the Agent advised the officer that she would submit the form the following day, along with a Form 1005 and supporting documentation to request permission to work for Mr [H]. The Department received the outstanding Form 866C on 7 February 2017, 4 days prior to the rescheduled date of interview. Along with this document, the Agent also provided a copy of the previously submitted statement of claims for Mr [H]. In her covering letter, the Agent stated that she submitted Mr [H's] statement of claims again as Ms [Z] had not put forward any claims in her own right at that time.
Departmental records also indicate that a request for interview was sent to the Agent on behalf of Mr [H] and Ms [Z] on 31 May 2016 for a scheduled interview on 15 June 2016. The Agent wrote to the Department on 8 June 2016 to request that the appointment be rescheduled to a later date, which was refused, and the Agent confirmed that she would attend. This appointment was subsequently cancelled by the Department on the day of the interview as the case officer was unable to attend the interview. A departmental officer emailed the Agent on 21 June 2016 to request her availability for a re-scheduled appointment but there is no record that a response was received.
Work rights
Two applications for BVCs with a request for permission to work were made for Mr [H], the first being granted by the Department on 4 December 2015, while the second application was granted on 8 August 2016. Both grants had condition 8101 (no work) imposed as the applications did not meet the requirements to demonstrate that there was a compelling need to work due to financial hardship. A BVC in association with the PPV application was granted for Ms [Z] on 14 April 2016. Following two previous attempts to request permission to work, a third request, which contained Mr [H's] bank transaction statements, was received by the Department on 7 February 2017, along with Ms [Z's] Form 866C.
Visitor visa applications
Departmental records indicate that no visitor visa application has been lodged for either of Mr [H's] daughters, [names redacted], who were listed in his PPV application as still residing in Iran.
Ms Yildiz’s Evidence
An email from Ms Yildiz to MARA dated 25 July 2018 responded to various allegations raised by her former clients:
I have mentioned to you previously, Mr [H] speaks Turkish, he is Azari in Iran. They speak Turkish. We never had an communication issue. He always were happy to work with me. I have offered him a professional TIS as mentioned previously to you I use to work as Social Worker for many agencies such as Community health Centre, local council Woman domestic violence Crises service that I have strong experience in working with different ethnic backgrounds and also able to use TIS. As professional I am strong support of using TIS. I have account with TIS know even though some client refuse. I do make sure, I use TIS if I feel they have not understood specific areas.
If you look at my other applications particularly with protection visas all the statement translated. Many of my client are Turkish speaking background which include Kurdish from Turkey. All written in Turkish and translated into English.
I always recommend my client of writing their statement in their language and get a professional translation. There client will take your advice other do not. It is there choice as well.
I have spoken to Mr [H] regarding his claim. He wanted to use Sarah he was his close friend that he stated that he trusted and wanted her to translate. Mrs [H] was involved later on.
I went to Sydney for the interview I had a copy of the file for the family and also had the statement. Protection Visa I always provide copy of the file to client before the interview so they are aware that is included in the application. Protection visa has set rule or process that I make sure it is clearly explained regarding their finger print if they don't do it become invalid application.
I offer to go to Sydney day before to provide further information regarding the interview. The couldn't see me day before therefor I went to Sydney very early so we will have time to disc uss the interview, statement and the case. We had a meeting with Mr [H] and his wife and daughter Mrs [H] We went through he statement together. Discussed the areas that they can be questions. I have given information of the process.
When the case officer called to cancel. I have asked her if there was another case officer can take the interview she stated they did not have any case officer can do the interview. She asked me is there another day. I have asked her that they can organise any time any day . I will organise my time for them. Also have stated that I can be part of the interview as conference. They had the statement. What ever my client provide I provide DIBP.
Sometimes client are hard be engaged in getting the right documents on time. The reason that [name redacted] statement forms were send. As I have given evidence that they did not respond. They did not provide me the relevant information on time. I have offered Mr [H] that made appointment with me to come and see me in Melbourne. he cancelled. It was mutual agreement that it was better for them to work with some in Sydney due to distance. I can't recall responding to the email of the Case officer for me request for an interview. However Mrs [H] called her self because wanted to arragen time according to her work hours and had little children. I have spoken to case officer via phone. The process of the protection visa the case officer organises the time. When I called to cancel the appointment due to varies issues. However at the end of the day I went to the interview all organised. We the agent have no say in requesting interviews for the protection visa. My records stated I have told the case officer that we can be available any time I will made organise my time. There was a communication breakdown. I have already told case offer on the phone I had no issues anytime however M had concern about the days she has called the department herself.
When they went to the new registered Migration Agent. I have spoken to Ms [H] she had the copy of the statement and application which I did provide them when I went to Sydney. I did call Mr Bollards office they have told me they were not going to take the case. I did not send the information and also I told them that daughter already had the copies. That if you look at the email. I have forwarded Ms Hossein that I have emailed her information about the application. The reason I emailed Mr Bollard office I felt that as professional RMA I should have even though daughter had copies the missing part were emailed.
As a registered Migration Agent I never write statement to the client nor give ideas statement for the client regarding protection visas.
I have explained via interpreter and in Turkish my work condition agreement visa advice. It is up to the client to decide if they want to work with me or they need to work with another Agent.
If you asked copy of the phone bill I would have send a copy. If you did I would have given you a copy. I have no issue providing a copy of Optus bill, There was a verbal discussion only. Omara can also call Optus requesting a copy.
Furthermore, I have done my work with client instructions. The client called me day before the interview. Do you have a letter from or evidence that Mr Bollard did not take the case due not having the application. I have called the office my Understanding was he would take the case due to success of the case was low. They did call me day before the interview. They wanted me to be at the interview I did not agreed. They have never told me Mr Bollard did not take the case due to lack of information. Department are very supportive, recently I had a case that the case officer have provided copy of the whole file just couple of days before the interview for one of my other clients.
The visitor visa. They have stopped the application temporary and they were going to lodge it later date. At that state lodgement were done via paper postage. I have spend time given information advice filling forms, organising documents. Have contact Ms [H] for refund who was in Iran, her husband emailed me called me I wanted to get an written authority from her to organise. I did not wanted to call the client to organise this refund. I have spoken to Ms Davidson. I need written letter an a bank details in the letter signed by Ms [H] I have asked this from her. I call not call them due to this complaint.
I have given them copies of the contract letter of advice if there was anything missing via my email I have no Idea.
Case notes are not created. I sometimes in the past used sticky notes when I make call or notes on papers with dates. I am not perfect. I have very massy hand writing this is one of the reason for LEAP. We are in 2018. As you recall I had another client made an complaint. I did not breach any condition. The reason is it learning area it was genuine mistakes. It was not purposely done not there was huge code conduct breach. The client have responsibility on providing information. I had difficulty working with this client.
If the client do not send you documents and they send you documents later that documents will be delivered late to the Department. I had issue working with the client. Ms [H] had little children worked part time she was not responsive quickly of you look at the email as I have provided you there were times that I have requested documents number time she would email me weeks month later. Most of the time she would message me stating that for example I will call Wednesday 10 am. I will wait for her call she will call at 12pm and states you did not pick up the phone. I have explained to her if you make an appointment at 10 am on Wednesday you need to make that call. If you call me at 12 or l wound be answering if I have other work appointment.
(Errors in original)

Ms Yildiz gave oral evidence to the Tribunal that:
·she had been predominantly dealing with Mr H’s daughter, M, which had caused numerous frustrations, but M was aware of what she was doing, and the contract was with her and not her father;
·she had not been involved in the preparation of Mr H’s statement of claim. that this document had been prepared by his friend Sara – who she had also been in contact with but did not know personally;
·that she was concerned about the statement of claim as she was adamant she advises all her clients to write their protection claims in their own language and then to get them translated by a professional, but in this case they had produced the statement without her involvement;
·she had travel to Sydney on two occasions to meet with the family, first spending a day with them giving advice and preparing their application. This application was done by hand with them in their home and she had returned to Sydney for the Departmental interview which did not take place as the case officer was sick. She had borne all her own travel expenses – flights, hotels, taxis and meals and not even claimed for the lost day when she came to Sydney for the interview which did not take place;
·she had been in contact with Mr H’s new agent, Mr Bollard, but had been advised he was not taking on the matter as the case had no prospects of success;
·that she had been on leave at the time as it was over the Christmas period and did not realise how much time had passed; and
·she had sent the file but had accidentally sent it to the Department in February and she could not understand why they needed her file any way, as M had a copy of all the relevant material for the application any way.
Second complaint
MARA’s decision stated:
On 6 August 2017, the Authority received a complaint from Mr U, who alleged the following:
• He engaged the Agent's services in September 2016 to assist with organising courses with education providers, and preparing the corresponding Student visa applications, for four relatives. These four relatives consisted of two sets of brothers, [names redacted].
• The Agent did not issue him with any Service Agreement.
• He received an invoice on 9 September 2016 and made a payment of $1000, consistent with the agreed fee in the invoice, for the [A] brothers on the same day. No receipt was received for this first payment. He subsequently sent the Agent another $1000 for the [B] brothers on 7 September 2016. Despite his request on 28 February 2017 for an invoice and receipt for the second payment, the Agent did not issue him either of the requested documents.
• He experienced difficulty in contacting the Agent throughout the period that she was engaged by him, and she failed to keep him informed on the progress of the visa applications and course enrolments in regards to the education services that she was also engaged to provide him.
• The Agent requested the same documents for the two sets of brothers on numerous occasions, and despite her earlier communications with Mr U, she appeared to be confused on what services she was engaged to provide, which required ongoing reiteration and follow up action.
• To date, he has not received course offers or course fee quotes for the Azzam brothers and he understands that the Agent has not commenced any preparation for the four Student visa applications.
• Given the delay in organising the application and enrolment of courses for the four students, in order to prepare their Student visa applications, Mr U contacted the -education providers initially identified and found the process was much shorter and more straightforward than the Agent had implied. He therefore does not believe that she undertook work on the cases in a diligent and competent manner.
• As a result of the delays and lack of progress, Mr U's four relatives were unable to organise their course enrolments and visa applications to commence their courses in Autumn 2017. He sought to terminate the Agent's services on 3 April 2017 and requested a refund of the fees paid, however the Agent refused to respond to his emails, phone calls and text messages. The Agent finally agreed to a partial refund of $1000 but notified him on 1 August 2017 that she had transferred the funds to the wrong bank account, despite Mr U having provided her his account details on 3 April 2017. The Agent subsequently stated that she would provide him a refund of $500 on 1 August 2017, yet no payment was received. No Statement of Services has been provided by her in relation to the payments made.
• The Agent has been unresponsive to, and deflective of, his attempts to contact her to resolve the refund dispute since this date.
…
Departmental Records
Departmental records show that at the time of the section 308 notice publication was published to the Agent on 26 September 2017, no Student visa applications had been received for [names redacted] since the time the Agent was engaged to provide the service in September 2016.
Ms Yildiz’s Evidence
An email from Ms Yildiz’s to MARA dated 25 July 2018 stated:
I offered him number of institutes for him to choose. He wanted to see a list he wanted to chose the institute himself. I have provided him the list, he chose the institute he had the contact details which he called all the instituted even though I have called and got relevant information and forms. was good lodged the application I have assisted him in filling forms you have evidence in whatsapp that I am showing him how to fill these forms. The send the application. Time paying the offer letter he said they boys do not wanted to study in Australia.
If Mr U did not find Immigration Law hard he would have continued his study. I would have continue in lodging a student visa. He would have had my list of contact and institute, he would have finished his assignment, he would have learnt how to do student visa. His aim never been about lodging getting a visa it was about him learning. He has made this statement he found the course hard he decided not deal or do immigration work and there was no reason for the boys move to Australia. He did not like to here wanted to stay where he was.
In this agreement I have completed my duties. My duty was advice, identifying list of institute, apply for offer letter leads to COE. He had forms and offer letter was complete. When it was time pay he changed his mind.
In discussion with this man he wanted to learn he was studying. He wanted to also take part in finding the courses college application for the school filling the form check list for the colleges or universities and how to get COE which once you pay the application offer letter.
The once COE ready where were going to look at organising another agreement for the lodgement of the student visa.
He did earlier state that he wanted to lodge himself with my guidance so he can learn. Or he would get ne to lodge the application.
Until Genuine criteria I have never did charge student visas unless there was complex case involved.
Since this change of Policy if they want me write a submission I will charge a fee which was another lot for the application and genuine criteria.
When We lodge and application RMIT I don't this under their name they received the form directly. My communication with U they received all forms information for his nephews I don't have an agreement with RMIT.
I have address my role I have no reason tom refund. The reason I was going to refund which I did make the attempt I had him on the phone making threat to lodge a complaint to OMARA I was scared of his tone of voice. I tried to transfer did not go through.
He called and made threats to receptions girls myself. I looked at the fee service agreement. I had obligation also sign. I have given him so much information. If you look at U file I have send you he had several email he only provided or disposed a specific email. We had over 100 pages of papers emailed to your office which post were emails. There were consistent communications. Given advice on specific visa or service in immigration start from $100. I charge $150 for student and $200 general public for visa options.
I wound not refund any fees for this client I have achieved the set tasks that was agreed. He can't get everything and then month months later change his mind and stops everything and want his money. He decided not study immigration Law he did not wanted live in Australia he did not like Australian law. He knew not signing contract can chose an issue he know Code of Conduct.
(Errors in original)
Ms Yildiz gave oral evidence to the Tribunal that:
·she had entered into an agreement with Mr U to both assist with numerous student visa applications and to provide advice to him as he was studying to become a registered migration agent himself;
·she had completed countless hours of work on these files as they are not straightforward, investigating institutions the boys could attend and courses they could undertake, and additionally looking into the numerous aspects of these applications, particularly in light of the two boys who had no travel documents;
·Mr U had dismissed her services as he longer proposed to bring the boys to Australia to study, that he had determined it was best they went to Malaysia as these courses were cheaper and their English language skills were not proficient;
·she had kept providing Mr U assistance with his studies and again she had made a mistake by not entering into a new contract with him for provision of this service;
·Mr U had been very aggressive and rude to her and the receptionists at the serviced offices she utilised in the city; he had even threatened her and made the girls feel very frightened;
·Mr U had made her feel very guilty about the boys and that she should not have become emotional in her dealings with him;
·she regretted the language used in her statement that she would not refund any of Mr U’s monies; and
·she did concede her recordkeeping in respect of this matter was not ideal and at times did not reflect when she had actually undertaken the work in respect of this client.
Third complaint
MARA’s decision stated:
On 24 August 2017, the Authority received a complaint from Mr S, who alleged the following:
• He met with the Agent for a consultation on 20 November 2016 at her office at Glenroy regarding visa options for his son, [AS], who has been residing in Turkey for four years.
• The Agent advised him to apply for a Child visa for his son, and following his agreement of her terms, conditions, and fees, he signed the Service Agreement and paid her the total professional fees charge of $8370 on the same day.
• He followed up on the progress of the application in January 2017 and discovered that the application had not been lodged. When he confronted the Agent as to why it had not occurred, and to determine whether she intended to complete the work she had been paid to provide, the Agent became upset and stated that she could not work for someone who did not trust her.
• Following this, Mr [S]S's brother '[B]' agreed to act as an intermediary to manage all communication with the Agent regarding the outstanding Child visa application.
• On 19 January 2017, the Agent informed [B] in a text message that she had lodged the application. [Text message records provided by Mr [S] show that the Agent stated she was preparing to lodge the application on 19 January 2017, but subsequently confirmed this had been done on 15 February 2017.]
• The Agent failed to provide any updates on the progress of the application or provide Mr [S] with the documents he had requested, which included correspondence from both the Department and the Australian Embassy in Ankara, despite being requested to do so on multiple occasions. When they were able to contact her, the Agent would request they send an email with their enquiry and advised that she would respond with the requested documents. However, she failed to action the request, and any attempts to follow up on this matter were ignored by her.
• [B] grew frustrated with the lack of communication from the Agent and sent an email on 15 August 2017 stating that he was unhappy with her service and that he would no longer be acting on Mr [S's] behalf. He stated that it was Mr [S's] decision whether to continue engaging the Agent's services in relation to the Child visa application.
• On the same day, the Agent responded to his email and stated that she had had an accident and would divest herself from his case as she believed both Mr [S] and [B] no longer trusted her as their migration agent.
• Mr [S] called the Agent twice on 17 August 2017 to enquire about the status of the application but she rejected both his calls and subsequently sent a text message stating that she was on leave. He had not yet terminated the Service Agreement at the time of making the complaint nor had he received any communication from the Agent since 17 August 2017.
…
Departmental Records
Departmental records indicate that at the time that this complaint was published to the Agent on 26 September 2017, no visa applications had been recorded for [AS] since 2012. Subsequently, staff at the Department's Ankara post advised that a subclass 101 Child visa for [AS] was received by post on 5 September 2017 but due to processing requirements was not registered in the system until after the publication of the complaint. Ankara post have advised that prior to the application which was received on 5 September 2017, they had not received any other application, either by post or courier, for [AS].…
Following publication of the complaint to the Agent on 26 September 2017, Mr [S] contacted the Authority on 4 October 2017 to allege that the Agent had contacted him through his brother [B] in an attempt to coerce him to withdraw his complaint against her by threatening to withdraw the Child visa application without his consent. In support of this subsequent allegation, Mr [S] provided the Authority with two phone screen shots of text message correspondence with the Agent. The screen shots show [B] advising the Agent that Mr [S] was unwilling to withdraw his complaint, and given the matter was before the Authority, it was not appropriate for him to be involved further. In response to this, she responded by stating "I will with draw [sic] my application from ankara [sic] then I will take steps against him as well may be [sic] he needs to learn a lesson and shame he doesn't care about his son that [sic] fine".
Mr [S]’s Evidence
Mr [S] provided a witness statement dated 26 September 2019 which stated:
On 20 November 2016, I met with Sema Yildiz for a consultation to bring my son [AS] to Australia. She advised me to apply for a Child visa for my
son. On the same day I signed a service agreement and paid $8,370.00. I only received and signed one service agreement.
I followed up the case in January 2017 by calling her, but realised that she still had
not lodged an application. I asked her if she cannot or does not want to do the job to return my money so I can go somewhere else but she got upset and complained that
I did not trust her and she cannot work for someone who could not trust her.
My brother, [B], thought that there might be miscommunication between us so he accepted to deal with Ms. Yildiz on this issue on my behalf.
On 19 January 2017, she informed my brother [B] through a text message that she had already lodged the application.
Months passed by but she did not give any updates or produced any documentation.
During this period, any request to give some indication of any correspondence
between her and the Australian Embassy in Ankara or with the Immigration
Department was ignored. If we managed to talk to her she would ask to provide an
email to send the documents but then would not send any. Subsequent follow ups
were also ignored.
On 15 August 2017, my brother [B], frustrated with her lack of response emailed Sema informing her that he could not deal with her anymore. On the same day, Sema replied that she had an accident.
On 17 August 2017 called her twice to ask about the status of the application but
both times she rejected my calls and subsequently sent a text message saying that
she was on leave.
Threat received
11 On 2 October 2017, Sema Yildiz sent a message to my brother “I will with draw my application from ankara then i will take steps against him as well may be he needs to learn a lesson and shame he doesn't care about his son that fine.”
I got very sad when she sent me this message, it caused a lot of stress. Instead of doing something good for my son.
Instead of trying to redeem herself and doing something good for me so we wouldn't have to go through all this trouble she threatened me by saying if you try to sue me I'll put you through a lot of trouble.
Impact of relationship with Sema Yildiz
Sema charged me $8,370.00. This amount is well above the normal price migration agents charge so I feel being defrauded.
My sons application was rejected by the Department of Home Affairs and I suspect that she has written some adverse information that contributed to the rejection. I have never seen the application and she never provided a copy, so I have no idea what she had put in the application. I even had not signed the application she submitted to the Department of Home Affairs and I suspect she had signed it on my behalf. My wife was not involved with the paperwork at all. We have no idea who signed the paper on July 2017.
During the process of dealing with Sema, my wife and I experience immense stress. Since rejection of my sons application my wife has been crying every day and this has put a lot of stress on the whole family.
Mr S advised the Tribunal that he and his wife attended only one face-to-face meeting with Ms Yildiz in November 2016 to discuss the migration of his son from Turkey to Australia. As his son’s previous humanitarian Visa had been refused, Ms Yildiz advised that the best option was to lodge a Child visa on his behalf as his son was under 25 years of age at the time.
Mr S stated he could not recall if it was by email or in person that he later delivered documents requested by Ms Yildiz back to her office, but he had no face-to-face contact with Ms Yildiz after January 2017. He said that he had brought to the office documents Ms Yildiz had requested such as his son’s ID. He stated Ms Yildiz had not provided a checklist of documents required to be submitted with the application. He advised the Tribunal he would have provided her anything she requested. He described the documents he and his wife had signed and was adamant his wife had not signed any documentation in respect of their sons visa application, stating at the hearing:
MR YUILE: At the meeting in November 2016 did you sign any document at that meeting?
INTERPRETER: Yes. Yes, this is document – this is our agreement what I sign.
MR YUILE: That’s the service agreement that’s attached to your statement?
INTERPRETER: Yes.
MR YUILE: Did you sign, at that meeting, any migration form or migration document?
INTERPRETER: Okay. Now that’s what I sign. He said that, you know, ‘Bring the document that I needed and when you bring in and I will sign it. The application.’
MR YUILE: So just to be clear, are you saying that you took documents away, signed them and brought them back?
INTERPRETER: My son has made – signed for. Not us. (Indistinct) sent email to our son, he sign it back and then he – they (indistinct) back.
MR YUILE: So for your son’s visa, were there any documents that you had to sign for the migration forms?
INTERPRETER: I’m not aware of anything that I have signed.
MR YUILE: So you’re not aware of any document that you emailed or provided in person that you signed?
INTERPRETER: No. I can’t recall.
MR YUILE: Do you know if there was any document that your wife signed for the migration forms?
INTERPRETER: I am hundred per cent sure that my (indistinct). She is the one in 2016, when she was present with me. and she has not signed – up to this day she has signed up nothing.

Mr S stated that he had been in constant contact with Ms Yildiz trying to ascertain the progress of his son’s application, as his son was in a precarious situation in Turkey with no work rights. He himself was struggling to support his family in Australia and send money to his son and his wife was stressed as they had not seen their son in seven years. He was frustrated as he could get no response from Ms Yildiz. He explained that as his brother was a friend of Ms Yildiz, and as his brother’s command of English is greater, his brother had subsequently taken over communicating with Ms Yildiz in an attempt to ascertain the status of his son’s application. He advised he had paid a considerable sum to Ms Yildiz for her services and had received no assistance, instead the whole experience had caused his family considerable distress.
An email from B (Mr S’s brother) to Ms Yildiz dated 15 August 2017 states:
I am truly baffled by your behaviour. You do not respond to my emails, text messages and calls. This is an utter disrespect. You have charged [Mr S] $8500 to deliver a service and we still do not know what you have done. You are refusing to provide any documentation or evidence to indicate what you have done so far. If you have done anything why you refusing to send any documents? If you have not done anything why are you not being honest about it? Any time I talk to you, you said that you were going to send the documents but you then ignored it. You boasted how professional you are; if this is the way you conduct your business congratulations on your “professionalism”. We have to call you many times to get an update (if you bother to respond) while a professional person would update their clients even without asking so. You might say that you are busy but if you treat all your clients like this surely you do not have much to do. I am sorry to say that I cannot deal with you anymore. I will leave it to [Mr S] now and if you take any steps to address the problem you are fully responsible for it.
A WhatsApp message from Mr H to Ms Yildiz dated 2 October 2017 at1:29pm states:
Hi Sema
I talked to [Mr S] and he is not prepared to withdraw the complaint. Given the issue is with the MARA now I do not think it would be appropriate for me to get involved anymore. Best wishes [B]
Ms Yilidiz’s reply at 1:31pm on the same date states:
I will with draw my application from ankara then i will take steps against him as well may be he needs to learn a lesson and shame he doesn’t care about his son that fine
Ms Yildiz’s Evidence
An email from Ms Yildiz to MARA dated 25 July 2018 states:
When we talk about the Registered migration Agent been honest and have integrity I believe client have the obligation as well.
Signature, The wife never came to the initial appointment she came when we started the application. They were also given forms to him for the son to sign and wife to sing.
I believe that all visa should be an online application. I have never and I will never in my life done a fraudulance work. What ever signature they gave me. Whatever I had I lodged. The forms were given to the client to get them signed by his wife and his son. I have no idea I wound accept what your are acc using me with. I have no idea. If you have system please investigate. I never done that signature myself. I am sure there is an system you check signatures.
The applicant knew I only do visa application. I am not passport officer or office. When I gave him the information of the options he wanted to apply for the child visa because of son age. He wanted apply for the child visa does not work he can lodge a refugee application. If you look at my advertisement which I will email you I do visa application that I also attend ATT MRT RRT Ministerial intervention. I do not also deal with Citizenship applications.
I have provided him a check list stated there is no passport and they can't get one they don't know how to obtain. I meant to guide them to obtain a passport for their son. if they can obtain how they can obtain. Obtaining passport is advising your client they can call the Iranian Embassy. Speaking to Australian Embassy if there is an option for people who can't get passport to travel. What will happen to those people. There are stateless people in the world. This was conversation. I made myself clear that I will assist in finding a way in obtaining travel pass or passport. I have contacted Embassy Iranian and Australian Embassy in Ankara. I have read the Legend if there is way. I never have said I can get a passport and I will apply for a passport. There is a difference. The client knew what I was talking about I have told client that they need to get this passport from Iran. If they did not understand we had number appointment he could have asked. Trying to explain to the client that I will try research and try find way to obtain way to how your son can get his passport to travel to Australia once his visa is approved. People can mis understand. I always end of my appointment is there any other questions.
For example in the schedule 2 there is no such thing as case management but the registered migration agent states that they do case management. What is case management. It is about managing case. For example care visa. "I assist my client with their written authority for me get in contact with their medical professions such doctors hospitals nurses. In my care visa I guide and advice client to organise attend all their specialist doctors within the 6 months. Furthermore, I contact the local council or disability services if there is an rehabilitee service for the client or local residence. If there isn't any rehabilitation service is there other options, what is the process for obtaining care and the wait system for the care they can receive from the council service for the age and disability. "
My client are usually people with lack knowledge in obtaining information from local Council or other government departments, some time they speak the language it is the confidence or to way of getting information, they have difficulty in doing these duties and I do encourage them however usually they are not successful. Also, while doing this I try to speak to these worker in obtaining the service policy for me to add to the application.
This passport situation was the same task assisting options assisting getting information assisting in finding out how they get this passport through Iranian Embassy.
I have passed the file over to the Mr [S] for him continue lodging the application himself and see if I can refund some of the fees such as the case management part. Mr [S] brother contacted me said they prefer for me to lodge it. I have asked for written letter of advice for me continue working with brother and provide him the feedback. I always provide a information to third person if I get an written authority letter from the client.
If I did I would have breached confidentiality. I have tried to explain this and they ever have emailed me the letter. Mr [S’s] brother should know this.
Mr [S’s] brother did not take part in this complaint due to the fact that they were aware of the process they were aware of the forms, amended contract and I followed their instruction. I don't understand why did not know that I was lodging the application. Also, have explained to the client that his son also need to be at educational institute and be dependent that need further evidence and information. The client did not turn up to appointment yet had informed of the process yet denied. I have no idea why people deny information.
(Errors in original)
Ms Yildiz gave oral evidence to the Tribunal that:
·she had worked on this matter as she was a friend of the client’s brother, having known him for many years and that she would see him regularly through his membership of the Kurdish Association of Victoria in which her ex-husband was also heavily involved;
·she had become quite distressed by this matter and was perplexed that Mr S was not telling the truth;
·she had met with Mr S on three occasions, and his wife had been present at one of these meetings;
·she had advised Mr S that the application was not ready to lodge as he had not provided relevant documents which were required for a child visa application;
·the application would have been refused as the documentation required were not to the level required by the department; she was adamant she had provided him with a checklist of what needed to be provided and he had failed to do so. She had subsequently lodged a Freedom of Information (FOI) application with the Department to ascertain information in respect of Mr S’s son’s previous failed protection visa application;
·Mr S had instructed her to lodge in February when she had much going on in her life, her uncle’s death, she was involved in a car accident and she was under considerable stress as she was also dealing with one of the other complaints;
·she had believed, that around this time she had put the application into an envelope and left it with the reception at her serviced office expecting they had posted the application, but she later discovered it never went to Ankara. She could not ascertain whether it was because it had never been posted or it had been returned to sender, but it was probably for the best the application had not been lodged as it did not contain all the necessary documentation;
·she had not misled Mr S about the lodgement of the application as he was keeping his brother fully appraised of what was going on, that she needed Mr S to provided additional documentation and was waiting for the outcome of the FOI request;
·not all her communications were via text but many of them were over the phone or in person but she had not recorded all these in her case notes. She agreed again that her file notes were not always in chronological order but maintained that she had not created the file notes after the event in order to deny the allegation;
·she was adamant that the family were fully appraised of the situation. There was a lot of pressure about this case as Mr S was feeling very guilty about his son’s situation, and a great deal of work needed to be done, and that they were fully aware she could not assist them with obtaining a passport for the son;
·she had not forged anybody’s signature, she was a well-respected member of the community and would never forge anybody’s signature, that nobody had compared the signatures to hers and whilst she agreed that there were obvious discrepancies in the signature on the applications she had not been involved in any way;
·after the application was not sent in February, she had another face to face meeting with Mr S and prepared a second application which Mr S had taken away and returned with all the relevant signatures – she then lodged this application;
·she did acknowledge that at various times she had voluntary students working in her office; students who are undertaking various courses and they may have helped with filling the application, but she could not recall if it had been the case in respect of this application;
·her text was not a threat to Mr S to withdraw his complaint to MARA, but was a threat that she would withdraw her services from assisting with his son’s visa application;
·she fully accepted that it was the right for any client to make a formal complaint to MARA about an agent;
·she had no power to withdraw the visa application and the only thing she could withdraw was provision of her services; and
·Mr S had become very abusive towards her and particularly about the costs of her services.
Fourth complaint
MARA’s decision stated:
On 21 November 2017, the Authority received a complaint from Mr [J] concerning the Agent's conduct as a migration agent. The complainant alleged that:
• He engaged the Agent's services in March 2015 in relation to his Partner visa application and review by the former Migration Review Tribunal (MRT), now the Administrative Appeals Tribunal (AAT). He continued to engage her services until after lodging his first PPV application in November 2016.
• During his AAT review, the Agent was forgetful and unprofessional. And failed to provide him with all the correspondence she received on his behalf…
• After the MRT affirmed the Department's decision to refuse his Partner visa, Mr J applied for his first PPV with the Agent's assistance. After lodgement, he requested that she provide him with a copy of the application, though she failed to respond to him or provide him any documents.
• In relation to his first PPV application, the Agent also failed to notify him of his biometrics appointment or provide him with the Department's correspondence. As a result, he did not attend his allocated appointment and his first application was deemed invalid. Furthermore, as the Agent did not notify him on the status of his application, his Bridging visa ceased and he became unlawful unknowingly.
• Upon discovering that he was unlawful, Mr [J] applied for a second PV application himself. During his PV interview, Mr [J] was advised that there was information in his first PV application that was not included and was inconsistent with his claims for protection in the second application. Mr [J] now believes that despite providing the Agent all the relevant and correct information for his application, she provided inaccurate and misleading information when completing his first PPV application for him.
• Further, the Agent did not issue Mr [J] with a Service Agreement or any receipts for the professional fee payments he made to her.
…
Departmental Records
A review of departmental records indicate that an application for a permanent Protection (subclass 866) visa (PPV) was lodged for Mr [J] on 14 November 2016. On 18 November 2016, the Department sent notification to the Agent, on behalf of Mr [J], advising of the biometrics appointment scheduled for 7 December 2016. A Bridging visa C with work rights, in association with the PPV, was granted on 28 November 2016, and the grant notice was also sent to the Agent. Mr [J]'s PPV application was deemed invalid on 7 December 2016, following his failure to attend the biometrics appointment, and the invalid notice was sent to the Agent on the same day. Mr [J] contacted the Department directly on 8 February 2017 to enquire why he was unable to see his visa details on VEVO. The departmental officer advised him that his Bridging visa had expired in January 2017 following his PPV application being made invalid, which Mr [J] stated he was unaware of.
Ms Yildiz’s Evidence
An email from Ms Yildiz to MARA dated 25 July 2018 stated:
He was aware that if he did not go to the finger print his application was invalid application. [J] had the papers for the finger print je forgot to go. Then when the application was invalid because he had acknowledgement paper that his application was lodged. When he received his work rights he decided to ignore me. He did not wanted to pay me. Mean while he forgot to go to finger print. He had the appointment with him. He cant blame me for that. I wanted to ignore me because he only paid me $1000 he has the receipt and did want to pay the rest. I have given him a copy of the contract, I have given him receipt, I have given him the acknowledgement letter and work rights, if he did not go to the finger print. He was given the time explained her for git blamed me for it. Then there was dispute that he started to threatening me. I have gave him withdrawal form for him sign and send to Immigration he had duties for his action as well. He speaks fluent English came to Australia on student visa. He had plenty time for him to organise himself with DIBP.
He only paid me $1000. He has the copy of contract, copy receipt and copy of the file. When we signed the contract I give a copy straight away. His does not live in interstate or overseas to receive by email. He has emailed me all his protection visa information which I have given you a copy which includes his statement they were all were emailed. The day we were going to lodge the protection visa he came in and check the application. He knew what it was in it and he signed I have posted the application. He also took copies of the last couple of question regarding the why claim for protection visa. Later when he requested the file. I have posted him the copy you have evidence that the postage was retuned I did provide a return copy of the envelope then we re send it. I have send him file. He had all the information because it was emailed to me. He had copies of the most important part the question for the claim and he had his statement. He did not wanted to pay his fee he disappeared he did not answer my calls. Until he got the work rights "I was Sema your so clever, Sema your nice Sema your supportive, sema I am so happy working with you "Then when he had acknowledgement letter and the work rights he felt I got what wanted why should pay sema yildiz I don't it lets disappear. Well when he for got to got finger print everything has changed. In the contract that he signed and OMARA client have the obligation to provide DIBP and the agent change of address and telephone number. The client has responsibility as well. Client have lied to DIBP Paid some for marriage this woman was in Sydney with her boyfriend had a baby when I called her for the MRT hearing. She stated that she has been separated from him more then 14 months have ben living in Sydney and had a baby. He doesn't want to help. He did not want to go to MRT he had no chase he prefared to work on this case for Protection visa. I have called him to come to office to make an agreement to lodge the application before the court hearing he stated he had no money.
We decided to for him deal with MRT he was going to withdraw the hearing or not turn up. He had the information it is in the emails I have provided you why wouldn't he know he did not know of the hearing. Then he quested form me to do instulment payment I agreed we signed and he made $1000. I have provided you a contract that he has signed. If he sighed why wouldn't I have not given him a copy. He has exposed the fact his marriage was a lie he paid her she did not help him. He was upset. I have told him what he has done was wrong given him the aknweldgement and also work right I did not wanted to work with him due to fact he has lied. His brother wanted to go to MRT on his won or apply for protection visa. This young man exposed the fact that they weren't brother by blood they were just friend they were guy. Due to getting married to Australian citizen they were scared that they will be in trouble.
After the complaint I never called any of my client at all. [J] friend who he calls my brother called me had miss call. I called him he did not answer then I called again. There was conversation between us. I returned his miss call. I never have made any threats.
This two man lied to DIBP in their marriage visa that they never have been in a genuine married they paid these to woman. If you look at the so called brothers application which I also found out later the wife was getting Centrelink as separated they were living at different address homes. These people lied to me and lied to DIBP and it was refused and they blamed me for getting refusals.
This client is not going to be honest. In this Case I do not believe I have breached any Code of Conduct. He speaks fluent English, he has dealing with DIBP directly, he has used the many immigration sources. This client has used my good will and abused me. I never made threats.
(Errors in original)
Ms Yildiz gave evidence to the Tribunal that:
·she had taken on Mr [J] as a client as she had previously assisted his brother and that he had another agent, but they were longer responding to his calls;
·she had been successful in a short period of time in securing him work rights, that after this he had refused to pay the second half of her fee and discontinued contact with her until he encountered difficulties as he had failed to attend the necessary the finger printing appointment with the Department; and
·she was the one who had discontinued working for him as he had lied to her about his marriage, which she discovered was bogus (as he had paid an Australian citizen to marry him) and that his supposed wife was living in Sydney with a another man to whom she had a child and she would not represent somebody who was presenting a bogus case.

The Tribunal was also not persuaded by Ms Yildiz’s evidence at the hearing where she offered numerous excuses for the failure to provide the documentation to Mr Bollard: she was on leave, she did not realise time had got away, she had contacted Mr Bollard but he was not going to take on the client as he had no hope of success, she had accidentally sent the documents to the Department and not to Mr Bollard, and fundamentally that there was no need to provide the documents as Mr H’s daughter had all the relevant documents anyway. Ms Yildiz’s multiple excuses indicated a disregard for her client’s wellbeing or her obligation as a registered agent under the Code and was not indicative of an individual who should have the privilege to charge for her services.
This was compounded by Mr Poynder’s contention that Mr H had not suffered any detrimental outcome at his protection visa interview which he was forced to attend unrepresented as Mr Bollard had declined to attend because he was not in possession of the client files. Regardless of Mr Bollard’s ability to speak at such an interview, the guidance, advice and assistance provided by a migrant agent during this stressful process is considered beneficial to visa applicants and would likely have improved the agent’s ability to provide advice to that client in the future. This left the Tribunal to ask rhetorically: if a registered migration agent is not needed at this crucial part of the process then why do clients such as Mr H, who paid $13,500 up front for Ms Yildiz’s services, retain them?
The Tribunal observed that Ms Yildiz spent a great deal of time and energy in her response to MARA and at the hearing rejecting the assertion she had been involved in the production of a false statement of claims on Mr Hosseniy’s behalf. The Tribunal accepts that Ms Yildiz had not been party to the production of false claims to support Mr H’s protection visa application.
Second Complaint
The Tribunal finds that Ms Yildiz breached clause 2.1 of the Code as she had not acted in accordance with the legitimate interests of Mr U as she had not dealt with him competently, diligently and fairly. Ms Yildiz had breached this clause by retaining fees paid by Mr U without having provided the services relating to those fees.
The Tribunal relied upon the departmental records which clearly show that at no stage had Ms Yildiz lodged any applications in respect of the four students visa sought by Mr U. Additionally, the Tribunal concurs with the finding of the delegate that Ms Yildiz had not acted professionally in her dealings with Mr U in respect of her refusal to refund his fees. The delegate’s decision states:
It is further concerning that, in the Agent's section 308 notice submission, she stated that she intended to withhold providing a refund to teach the client a lesson, particularly where there is no evidence that she prepared the Student visas despite issuing receipts for professional fees in respect of the service. I note that she has subsequently submitted to the Authority that her reason for withholding any refund was on account that she had provided the agreed services. However, in light of the aforementioned finding, that the Agent has not provided the services stipulated, her responses may be considered as an attempt to mislead the Authority, and is cause for broader concerns on the Agent's fitness to practice in the migration advice and assistance profession.
The Tribunal found Ms Yildiz’s file notes in respect of the work for Mr U alarming; dates were not chronical, entries in the file notes did not accord with messages she was exchanging with Mr U and it would appear the whole document had been created to justify to MARA the work she had taken in respect of the student visa applications. Ms Yildiz at no stage produced any documentary evidence to substantiate her claims that she had undertaken countless hours of work in respect of the student visa applications, there was no evidence of her interaction with the various educational institutions in respect of the courses she had supposedly explored. Ms Yildiz has again misled a client, as her messages to Mr U clearly indicate she would lodge two of the boy’s applications between 15 January 2017 to 25 January 2017, but this never eventuated.
The Tribunal again found Ms Yildiz had been fixated on her friendship with Mr U and that she had felt used by him in his quest to become a migration agent. Ms Yildiz’s evidence during the hearing did not provide insight into her actions in respect of dealing diligently with this client, again she was fixated on an irrelevancy not in contention before the Tribunal. This can be summed up by one of her statements during cross-examination;
You agreed to refund half? I said to him I spent hours on that, he made me feel guilty about the boys, he kept calling me. I shouldn’t been emotional but I said I’m not going to refund you.
The Tribunal finds that Ms Yildiz breached clause 5.2 of the Code as she had failed to provide Mr U with a service agreement in advance of starting work in respect of his second request for two additional student visa applications.
The Tribunal based this finding on the lack of any documentary evidence to substantiate that Ms Yildiz had entered into a second service agreement with Mr U. The Tribunal was somewhat at a loss to follow the circumstances in respect of this matter where Ms Yildiz claimed she had two service arrangements with Mr U. One where she was assisting with the four student visa applications, and another where she was providing tutorial assistance to Mr U in connection to his attempting to become a registered migration agent.
Adding to this complication was Ms Yildiz’s admission during cross-examination when it was put to her that she had only entered into one service agreement with this client she claimed firstly that “I always do a service agreement, it’s not perfect but I always do one.” And in the next breath “it could be the fact, maybe I didn’t because it’s a continuation.”
Compounding this matter was the email from Ms Yildiz to Mr U on 1 August 2017 indicating she had ended her service agreement with Mr U as she clearly states:
in overall results will no longer require your harassment or abuse phone calls to the receptionist as the girls are very upset and they do not have any inclusion in regards to your matter. So stop this phone calls or emails to me as I will no longer required to speak to you.
However, her file note indicated that she had undertaken work on behalf Mr U on 28 December 2017. The Tribunal noted Ms Yildiz’s distress in respect of this client noting she made numerous references to making a big mistake in getting involved in this matter.
Third Complaint
The Tribunal does not find that Ms Yildiz breached clause of 2.9 of the Code, by forging the signatures of Mr S and his wife on forms submitted to the Department in connection with their applications. The decision of MARA stated:
In making this decision, I have turned my mind to a suspension, where I would need to be satisfied that after a period of time, and remedial action, the Agent would be capable of meeting her professional obligations and deal with her clients and others with integrity. As the conduct involved fraudulent conduct through the forging of client signatures to conceal other failings, which were then submitted to the Department without the clients' knowledge or permission, I am of the view that there is no remedial action, which could be undertaken to address the serious adverse conduct.
The Tribunal was unable to form a conclusive view that Ms Yildiz had forged her client’s signatures on the visa applications she eventually lodged in August/September 2017. The Tribunal concurred with both parties that the signature purporting to be Mrs S’s contained in the visa application forms appeared to be a forgery; the Tribunal having no expert evidence in respect of Mr S’s or his son’s signature did not form a view in respect of their authenticity, however the Tribunal is satisfied that Mr and Mrs S did not sign any forms in July 2017. The Tribunal does not concur with MARA’s finding that:
… I find that she was the only one in a position to sign these forms before submitting them to the department, and that she did so without her client’s knowledge, in order to conceal her failure n lodging the visa application at the time she informed Mr [S] that it had occurred… As such, I find that she forged the signatures and had done so without her client’s knowledge or permission, and in doing so has the provided the department with two application forms that are misleading and fraudulent in nature…
The Tribunal was in no doubt that someone other than Mr and Mrs S had signed the forms in July 2017; however, the Tribunal finds there is no factual evidence which could conclusively determine this individual was Ms Yildiz but only supposition. Based on this, the Tribunal does not find that Ms Yildiz forged these documents. Ms Yildiz muddied the water in respect of this matter when she advised the Tribunal that at times voluntary students assisted her with applications and perhaps, they had been involved in preparing this application, but again there was no evidentiary proof to substantiate this claim.
Regardless of the fact the Tribunal could not determine that Ms Yildiz had forged the signatures, the Tribunal finds she did not deal with Mr S competently, diligently and fairly in all aspects of her handling of this application and had breached clause 2.1 of the Code in respect of Mr S.
The Tribunal finds that Ms Yildiz had breached clause 2.9A of the Code as she had misled MARA in respect of information about the application made to the Post in Ankara on behalf of Mr S.
The Tribunal based this on all the evidence before it, particularly noting the determination of the delegate where she explained at length the investigation into this client’s allegations:
While the Agent has advised, in her responses to the Authority's notices, that the original undelivered application was returned to her, she has not provided any evidence to support her assertion that she had submitted, or attempted to submit, [AS]'s Child visa application at an earlier time, despite being provided opportunities to do so. The application forms submitted with the Child visa application received by the office in Ankara in September 2017 contain application forms that were not signed until 20 July 2017. It is unclear why the Agent would not have resent the original application forms signed by Mr [S] and [AS] prior to the purported February lodgement, given she had used the 956 forms and Mr [S]'s statutory declaration that had previously been signed in November and December 2016, respectively.
The Agent has been unable to provide any email correspondence or evidence that she posted the first application, contacted the Ankara office to confirm whether the first application had been received, or that she advised Mr [S] that the application had been returned. The Agent has only provided correspondence with the Ankara office in late September 2017 as evidence of the purported earlier lodgement. It would be expected that the Agent would have a copy of the original application on her records, as well as any version that was returned to her to corroborate her statement. However, she has not provided these in her response to either the section 308 or section 309 notices.
…
The Agent asserted in her statutory declaration submission to the first section 308 notice that she lodged a Child visa application for Ahmad (which was undelivered) months prior to the application which was received in September 2017. Furthermore, that Mr [S] was notified that this application was returned undelivered, and that he had subsequently returned to her office to review the ‘second’ application prior to it being sent to the Ankara office. However, based on the information before the Authority, including Mr [S's] statements and evidence, departmental records, her own submissions, and the above findings, it appears the Agent has attempted to mislead the Authority in relation to a number of aforementioned matters. I am satisfied that this repeated conduct, which appears to be a consequence of her attempt to conceal and justify deficiencies in her practice, is a breach of clause 2.9A of the Code.
Additionally, the Tribunal relied upon the evidence of WhatsApp messages between Ms Yildiz and Mr S’s brother which clearly indicate Ms Yildiz had advised the application had been lodged in February 2017. On 15 February 2017:
[Mr S’s brother]:
hi Sema
Hope you are well. Just to let you know that [Mr S] will come to pick up his documents tomorrow or on Friday. Could you let me know what is best time for him to come?
[B]
[Ms Yildiz]:
it’s been lodged [B]
do you want me with draw the application I have done
when I get infor from Ankara I will pass it to your brother he continue what he needs to do
Shame people have lost trust in people I do everything legal and professional has called Gulay told she was unprofessional yet he has insulted me it’s been lodged waiting some details when I do post to your brother
I don’t have time see people who have known trust in professionals in Australia
My aim was to get travel pass approved before lodging the visa so it was garanteed from ferign affairs but people like other agent do not know the process is a permanent visa take 6 to 12 months I have don’t it before we had Christmas it was closed several weeks the government doesn’t want confirm the travel documents do think I am going teach my own people
Disappointed in your brother attitude he only need to call and see what we were doing
Dated 16 February 2017:
Hi Sema
I talked to [Mr S] and he said that he did not mean to offend or upset you. He is worried about his son and he would like something to be done quickly but he was not aware what was being done. He has asked me to take it over so please continue with the case. Please just update me on the development or lack of it when you get a chance
Best Wishes
[B]
The Tribunal found Ms Yildiz’s evidence about submitting Mr S’s application to the post in Ankara in February 2017 highly preposterous and again cast doubt on her fitness to be a registered migration agent.
The Tribunal finds that Ms Yildiz had breached clause 2.15 of the Code as she had attempted to intimidate and coerce Mr S for her benefit by threatening Mr S, through his brother, with the goal of having him withdraw his complaint to the respondent.
The Tribunal based this on all the evidence before it, particularly the text messages in the T-documents and the determination of the delegate where she explained at length the investigation into this client’s allegations:
Both Mr [S] and Mr [J] have alleged that the Agent contacted their brothers following the Authority's publication of their complaints, in an attempt to have them withdraw the complaint material against her. In the case of Mr [S], it is alleged that the Agent advised his brother [B] in writing that she would withdraw [AS]'s visa application if the complaint was not withdrawn in order to teach Mr [S] "a lesson" and that it was "a shame that he doesn't care about his son" enough to submit to her demands. This text message, which was provided to the Authority by Mr [S], is a clear attempt to coerce or intimidate him by applying undue pressure to withdraw the complaint made against the Agent, to benefit her own situation by attempting to disrupt the Authority's investigation.
The Tribunal finds, based upon the evidence before it, that Ms Yildiz had attempted to coerce Mr S into withdrawing his complaint to MARA. The Tribunal did not consider that the threat needed to purport to actions she was going to take in respect of the son’s application or withdrawing her services; the mere act of seeking to have Mr S withdraw his complaint was sufficient to determine she had sought to intimidate her client into withdrawing his complaint for personal gain which is a breach of clause 2.15 of the Code.
Fourth Complaint
The Tribunal’s findings in respect of this complaint are discussed in paragraph 92.
CONCLUSION
The Tribunal, having assessed all the evidence before it, finds that Ms Yildiz lacked the ability to provide competent, diligent or fair work for her clients as evidenced by the numerous and repeated breaches of the Code. In summary, the Tribunal determined Ms Yildiz breached the following clauses of the code:
·2.1 - act in accordance with the legitimate interests of the client and deal with the client competently, diligently and fairly,
·2.8 - confirm instructions in writing, act in accordance with instructions, keep client informed
·2.9 A - not misleading or deceiving the Migration Agents Authority
·2.15 - not intimidating or coercing persons for the agent’s benefit
·5.2 - providing clients with service agreements in advance of starting work
·6.1 - maintaining proper records
·6.1 A - keeping records for a period of 7 years
·10.2 - return of documents belonging to the client within 7 days of request
·10.5 and 10.6 – on completion of services, give to the client all documents for which the client has paid; and after termination of instructions, deliver to the client or their nominated person all documents
The Tribunal did not find Ms Yildiz had breached clause 2.9 (not making statements in an application which they know or believe to be inaccurate or misleading) of the Code, as there was no corroborating evidence which conclusively demonstrated that Ms Yildiz had forged her client’s signature.
Additionally, the Tribunal concurred with the delegate’s determination that Ms Yildiz was not a person of integrity or otherwise not a fit and proper person to give migration assistance within the meaning of ss 303(1)(f) of the Act.
MARA provided the below summary in their decision:
Integrity, fitness and propriety
Pursuant to paragraph 303(1)(f) of the Act, the Authority may caution a registered migration agent, or suspend or cancel their registration, if the Authority becomes satisfied that the agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance.
There is a degree of overlap between 'fit and proper' and 'integrity' to the extent that fitness and propriety include consideration of the honesty of the actions of an individual.
'Integrity' means 'soundness of moral principle and character, uprightness and honesty'.
Whether a person is a 'fit and proper person to give immigration assistance' is an enquiry which looks broadly at three factors — honesty, knowledge and competency.
…
The context in which the reference to 'fit and proper' person occurs in section 290 of the Act is the Agent's giving of immigration assistance. The context also includes:
(a)the Act which creates offences for misleading statements and advertising, practicing when unregistered and misrepresenting a matter; and
(b)the Code contained within the Agents Regulations which refers to the applicant being able to perform diligently and honestly, being able and willing to deal fairly with clients, having knowledge of business procedure and properly managing and maintaining client records and maintaining client confidentiality.
Key elements of the fitness test are:
·the honesty of the person; and
·the person's knowledge of the migration scheme and ability to fulfil the position of a migration agent.
…
Having regard to the Complaint Classification Matrix, I have considered that the Agent's conduct falls within the Major classification for the below reasons and involves:
·Acting contrary to the law by engaging in acts of fraud;
·Multiple breaches of the Code including those involving recordkeeping and communication, which are demonstrative of the Agent's systematic poor practices;
·Dishonest and reckless behaviour, towards both her clients and the Authority, including evidence that the Agent has attempted to conceal her culpability for not acting in accordance with client instructions;
·Multiple clients adversely affected;
·Conduct that may result in significant reputational damage to the migration advice profession; and
·A blatant disregard for or a significant degree of indifference to the law, and the legitimate interests of the Agent's clients.
Consumer Protection
Consumers of professional services of registered migration agents are often vulnerable and place a high degree of trust in their registered migration agent. Consumers are therefore entitled to a high level of professional service from their registered migration agent.
The behaviour demonstrated by the Agent falls short of the reasonably expected standards of a registered migration agent. I consider that the Agent poses a serious risk to consumers due to the identified fraudulent conduct, and her lack of accountability or remorse. I am satisfied that if the Agent were to continue to practice as a registered migration agent, the Agent would not demonstrate the requisite skills expected of a registered migration agent. I consider that a disciplinary decision is warranted to address the conduct, which is the subject of this decision, and in the interests of consumer protection.
DECISION
In all of the circumstances, and in the interests of consumer protection, I consider that it is appropriate to cancel the Agent's registration.
…
Based on the facts and evidence before me, and my findings as discussed in the decision, I have decided to cancel the Agent's registration as a migration agent under subparagraph 303(1)(a) of the Act. I am satisfied for the purposes of subparagraphs 303(1)(f) and (h) that:
·the Agent has not complied with clauses of the Code; and
·the Agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance.

The Tribunal, having considered that Ms Yildiz has breached numerous aspects of the Code, then turns to penalty. Whilst the Tribunal did not find that the most serious allegation of forgery had been found, it nevertheless determined that in accordance with MARA’s Complaint Classification Matrix, Ms Yildiz had committed a major breach of the Code. This is because multiple clients had been impacted; continued registration of Ms Yildiz was not in the public interest; her actions had had a major effect on the migration outcome of her clients; her clients had suffered financial loss; she had misled the authority during the investigation; the Tribunal was not satisfied there was any potential to rectify any of her practices; she had repeatedly breached the Code; she had demonstrated reckless behaviour by attempting to intimidate a client into withdrawing a complaint; and the only penalty applicable to such breaches of the Code was cancellation of the registration.
DECISION
The Tribunal affirms the reviewable decision made on 12 October 2018, being the decision of the Migration Agents Registration Authority to cancel the registration of Ms Yildiz as a registered migration agent under section 303 of the Act.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna E Burke AO, Member

......................[sgd]..................................................
Associate
Dated: 30 July 2020

Dates of hearing: 5 March 2020 & 13 - 14 May 2020

Counsel for the Applicant: Mr Nicholas Poynder

Solicitors for the Applicant: FCG Legal Pty. Ltd.

Counsel for the Respondent: Mr Andrew Yuile

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	5 March 2020 & 13 - 14 May 2020
Counsel for the Applicant:	Mr Nicholas Poynder
Solicitors for the Applicant:	FCG Legal Pty. Ltd.
Counsel for the Respondent:	Mr Andrew Yuile
Solicitors for the Respondent:	Sparke Helmore Lawyers