Yildiz and Migration Agents Registration Authority

Case [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

  1. 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.

  2. 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).

  3. 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.

  4. 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…

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AGLC
Yildiz and Migration Agents Registration Authority [2020] AATA 3744
Case
[2020] AATA 3744
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Yildiz against a decision by the Migration Agents Registration Authority (MARA) to cancel her registration as a migration agent. The dispute arose from multiple complaints made against Ms Yildiz regarding her conduct in assisting clients with visa applications. The decision was made by Ms Anna E Burke AO, a Member of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Ms Yildiz had breached the Code of Conduct for registered migration agents and, if so, what penalty was appropriate. Specifically, the Tribunal had to consider whether Ms Yildiz failed to act in accordance with the legitimate interests of her clients and deal with them competently, diligently, and fairly, and whether such failures warranted the cancellation of her registration. The Tribunal also considered whether Ms Yildiz was a person of integrity and a fit and proper person to provide migration assistance.

The Tribunal's reasoning was based on a comprehensive assessment of the evidence, including documents and oral testimony from both Ms Yildiz and a complainant, Mr S. The Tribunal found that Ms Yildiz had engaged in numerous and repeated breaches of the Code of Conduct, including failing to confirm instructions in writing, keep clients informed, provide service agreements in advance, maintain proper records, and return client documents promptly. These breaches demonstrated a lack of competence, diligence, and fairness in her dealings with clients. The Tribunal also concluded that Ms Yildiz was not a person of integrity or otherwise a fit and proper person to provide migration assistance, citing dishonest and reckless behaviour, multiple adversely affected clients, and a disregard for the law and client interests.

Consequently, the Tribunal affirmed the delegate's decision to cancel Ms Yildiz's registration as a migration agent. The Tribunal was satisfied that Ms Yildiz had not complied with the Code of Conduct and was not a person of integrity or a fit and proper person to give immigration assistance, deeming cancellation to be appropriate in the interests of consumer protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 complaintMARA’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 applicationDepartmental 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 rightsTwo 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 applicationsDepartmental 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

Decision

Reasons for decision

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 proprietyPursuant 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 ProtectionConsumers 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.DECISIONIn 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.

Ratio Decidendi

Legal Principle Established

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