Falcon and Migration Agents Registration Authority [2002] AATA 1108 (28 October 2002)

Last Updated: 29 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1108

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/151

GENERAL ADMINISTRATIVE DIVISION

Re: ADA AYSE FALCON

Applicant

And: MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 28 October 2002

Place: Melbourne

Decision: The Tribunal sets aside the decision under review and substitutes a decision that the registration of the applicant as a migration agent be suspended from 22 January 2002 until 21 January 2003.

(sgd) G.D. Friedman

Member

MIGRATION - migration agent - cancellation of registration - breach of Code of Conduct - whether fit and proper person - period of suspension

Migration Act 1958 ss303, 304, 314

Re Feng and Migration Agents Registration Authority [2002] AATA 709

Re Griffiths and Migration Agents Registration Authority [2002] AATA 247

Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534

Re Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249

Re Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293

REASONS FOR DECISION

28 October 2002 G.D. Friedman, Member

1. This is an application by Ada Ayse Falcon (the applicant) for review of a decision of the Migration Agents Registration Authority (the respondent) dated 22 January 2002 to cancel the applicant's registration as a migration agent on the grounds that the applicant had not complied with the Code of Conduct (the Code) as required under the Migration Act 1958 (the Act).

2. At the hearing of this matter on 14 October 2002 Mr G. Doran, solicitor, represented the applicant and Mr T. Fell, solicitor, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with one exhibit (Exhibit A1) lodged by the applicant.

BACKGROUND

4. The applicant was born on 27 March 1963 in Turkey and migrated to Australia with her parents in 1969. In 1987 she established Falcon Travel which operates in Dandenong. As a result of an interest in migration matters and involvement in community activities arising from her travel agency, the applicant completed a migration agents course at Footscray Institute of Technology in 1995. On 9 May 1997 she was registered as a migration agent and spent about two days each week on migration work.

5. In late 1997 a medical practitioner from Malaysia (the complainant) and his wife (the wife) engaged the applicant to assist them and their two children to obtain a permanent concessional visa on the basis of the wife's occupation as a nurse. The agreed fee of $5,000 was paid on 23 October 1997. In April 1998 the wife informed the applicant that she was unable to produce evidence of formal qualifications in nursing, so the applicant decided to change the application by the complainant to an investment-linked independent visa. The applicant told the complainant that the total fee for all family members would be an additional $6,000, making a total of $11,000. She undertook various tasks associated with the application, but did not draw up a fee agreement or confirm any verbal agreement regarding the fee.

6. On 14 November 2000 the complainant wrote to the Department of Immigration and Multicultural and Indigenous Affairs (the Department) withdrawing his application because a medical practice in New South Wales had agreed to sponsor him. In a telephone conversation with the applicant in February 2001 he confirmed the withdrawal. The applicant pursued the outstanding fee of $6,000 and on 21 July 2001 she wrote a letter (the July letter) to the complainant seeking payment. In her letter the applicant stated: ...Your file is very well documented, I will hand all information to DIMA, if my fee isn't paid.

7. On 5 September 2001 the respondent received a complaint from the complainant, alleging that the applicant had refused to refund money paid for work not completed; had demanded further payment of fees which were never advised to the complainant; and had made threats of passing information to the Department. On 24 September 2001 the respondent advised the applicant of the complaint and invited the applicant to respond. On 15 October 2001 the respondent received a submission from the applicant and on 19 October 2001 the respondent sought additional information, which was received on 5 November 2001. On 19 December 2001 the respondent wrote to the applicant and informed her that it was satisfied that she may have breached the Code. On 21 December 2001 the respondent received a further submission from the applicant.

8. On 22 January 2002 the respondent decided to cancel the applicant's registration as a migration agent on the grounds that the applicant had breached the following clauses of the Code:

* failed to act in accordance with the legitimate interests of her client (Clause 2.1(a));

* failed to deal with her clients competently, diligently and fairly (Clause 2.1(b));

* failed to have due regard to her client's dependence on her knowledge and experience (Clause 2.4);

* attempted and may have intimidated or coerced the complainant for her benefit by engaging in undue pressure and in untruthful claims of departmental sanctions (Clauses 2.15(a) and (e)); and

* set and charged a fee that was not reasonable in the circumstances of the case (Clause 5.1).

9. On 11 February 2002 the applicant applied to the Tribunal for review of the decision. On 12 March 2002 the Tribunal refused to stay the operation of the decision pending the outcome of the application.

EVIDENCE

10. In oral evidence the applicant told the Tribunal that when she and the complainant discussed the additional fee of $6,000 to obtain permanent visas she wanted to draw up a written agreement but he said there would be no need as they trusted each other. She said that as they had built up a trust she did not insist or confirm the agreement in writing. She stated that after consulting other migration agents she believed the amount to be reasonable.

11. The applicant said that she became aware of the withdrawal of the complainant's application about five months afterwards, and after she had devoted a considerable amount of time and effort on his behalf. She said that she met the wife on 2 March 2001 to discuss the fee but the wife claimed to have no knowledge of the $6,000. The applicant stated that the wife made many telephone calls in which she said: If you persist with the $6,000 I will make your life hell. The applicant said that after hearing nothing further from the complainant for several months she wrote the July letter. She stated that the reference in the letter to sending the file to the Department was not meant to be a threat but was an ill-considered act arising from her frustration at not hearing from the complainant or not receiving the payment for her work. She said that she was making the point that the Department would be able to confirm that she had carried out her obligations and had made extensive efforts on the complainant's behalf. The applicant acknowledged that in retrospect the wording of the letter could have been taken by the complainant to be a threat.

12. In cross-examination the applicant agreed that, although she had worked diligently on behalf of the complainant, she had breached the Code by failing to provide a written fee agreement and by creating the perception that she had threatened the complainant if he did not pay the outstanding amount. She recognised that she had no basis for claiming the additional $6,000 from the complainant, but denied that in her submissions to the respondent she had tried to shift responsibility to the complainant. She said that she regretted the situation that has arisen and she apologised to the complainant and the wife for any distress caused by the July letter.

13. The applicant told the Tribunal that, during the period since the cancellation of her registration, she has had time to reflect on the operation of her practice as a migration agent. She stated that in future she would separate the accounts of the travel agency and the migration agent's practice and would engage a legal practitioner to draw up a fee agreement. She said that her earnings from the practice in the twelve months before the cancellation of her registration were about $20,000-$25,000, and that the travel agency has also lost business as a consequence of the cancellation of her registration.

CONSIDERATION OF THE ISSUES

14. The relevant sections of the Act are:

303 The Migration Agents Registration Authority may:

(a) cancel the registration of a registered 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.

...

304(1) If the Migration Agents Registration Authority suspends the registration of a registered agent under section 303, the Migration Agents Registration Authority may:

(a) set a period of suspension of not more than 5 years; or

(b) set a condition or conditions for the lifting of the suspension.

(2) If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.

314(1) The regulations may prescribe a Code of Conduct for migration agents.

(2) A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

The Code of Conduct is contained in Schedule 2 to the Migration Agents Regulations 1998 (Statutory Rule Nº 53 of 1998). The relevant clauses are:

2.1 A migration agent must always:

(a) act in accordance with the law and the legitimate interests of his or her client; and

(b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.

...

2.4 A migration agent must have due regard to a client's dependence on the agent's knowledge and experience.

...

2.15 A migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, an agent must not engage in any of the following:

(a) undue pressure;

...

(e) untruthful claims of Departmental sanctions;

...

5.1 There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.

15. Mr Doran submitted that the behaviour by the applicant had involved two acts that led to a breach of the Code: the wording of the July letter and the failure by the applicant to arrange a formal fee agreement for the additional $6,000. He stated that the applicant was bound by her instructions from the complainant, and she undertook considerable work on his behalf to the best of her ability. He said that the complainant was an articulate and educated person who was unlikely to be unduly influenced, or taken advantage of, by the applicant. Mr Doran said that the complainant's instructions changed and his relationship with the applicant broke down towards the end of the process and after he had withdrawn his visa application.

16. With respect to the July letter, Mr Doran suggested that it, rather than the course of conduct by the applicant, gave rise to the complaint. He conceded that objectively the latter could be construed as a threat, but in fact such a threat would have had little or no impact because the applicant had no information on her file that could have affected the decision by the Department to grant a permanent visa to the complainant.

17. Mr Doran referred to Re Griffiths and Migration Agents Registration Authority [2002] AATA 247 in which the Tribunal accepted that the object of disciplinary proceedings in relation to professional people is to protect the public and to maintain proper standards in the relevant profession and not to take action by way of punishment. In that matter the Tribunal found that the applicant had fallen well short of the standard expected of a migration agent. The Tribunal overturned two decisions to cancel the applicant's registration and imposed a suspension period of two years. Mr Doran said that, while a single breach of the Code might provide the grounds for cancellation under the Act, the breaches committed by the applicant in the present case, individually or collectively, do not call for such extreme action when compared with the breaches in Re Griffiths and Re Lilienthal and Migration Agents Registration Authority [2001] 66 ALD 249. He also referred the Tribunal to Re Feng and Migration Agents Registration Authority [2002] AATA 709 on this point.

18. Mr Doran urged the Tribunal to conclude that cancellation should only be used as a last resort, where there is no likelihood that caution or suspension would lead to an improvement in the behaviour and skills of the migration agent (Re Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293). He said that the applicant had breached the Code in respect of only one client and the transaction involving him. During the period of cancellation, the applicant has admitted breaching the Code and has acknowledged that she has no right to seek further fees from the complainant. He stated that she has expressed regret for the distress caused by the July letter and has planned changes in her administrative procedures concerning fee agreements. Mr Doran submitted further that the applicant has suffered significant financial loss in almost nine months since the date of cancellation of her registration, and that the Tribunal should take this into account if considering a period of suspension. He referred to letters from the local Federal Member of Parliament, the Department's Dandenong office and a Certificate of Appreciation from the South-Eastern Region Resources Centre, which comment favourably on the applicant's character, integrity, honesty and dedication.

19. Mr Fell submitted that the breach of the Code was serious and represented a course of conduct by the applicant. He referred to the failure by the applicant to refund the original $5,000, the lack of a fee agreement and the threat contained in the July letter, and said that the behaviour by the applicant fell short of that expected of an experienced migration agent. Mr Fell stated that at the time of the breach and during the initial inquiries by the respondent the applicant had not admitted any wrongdoing or expressed any remorse for her actions.

20. Mr Fell said that on the basis of such conduct it was open for the Tribunal to find that the applicant was not a fit and proper person to give immigration assistance under s303(f) of the Act. He referred to Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534 in which the Tribunal stated that a person must be a person of honour, reliability, honesty and soundness of moral character, as well as having a knowledge of migration procedure and therefore being able to be relied upon to give competent migration assistance. Mr Fell stated that in the present case the applicant acted directly against her client's interests and engaged in intimidating behaviour in trying to enforce payment of unreasonable fees. He submitted that in all the circumstances cancellation of registration was appropriate.

21. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal accepts the submission by Mr Fell that the actions by the applicant, in failing to arrange a written fee agreement and engaging in threatening behaviour when pursuing outstanding fees constitute conduct that falls short of that expected of a registered migration agent. The Tribunal is satisfied that under s303(h) of the Act the applicant has not complied with the Code prescribed under s314 of the Act.

22. However, the Tribunal accepts the submission by Mr Doran that the actions by the applicant do not represent a course of conduct as they involve only one client and one transaction. The Tribunal also accepts that, during the period since the cancellation, the applicant has expressed regret for the distress caused to the complainant, she has examined the administrative processes relating to fee agreements and has acknowledged that her method of seeking to recover outstanding fees was inappropriate. For these reasons, applying Re Hakaoro and taking into account the personal references regarding her character, the Tribunal is not satisfied that the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance under s303(f) of the Act.

23. In applying its discretion, under s303 of the Act, the Tribunal considers the breach of the Code to be serious and that a caution under s303(c) is inappropriate. In view of its finding in relation to s303(f), the Tribunal agrees with Mr Doran that cancellation of registration under s303(a) would be a last resort and is also inappropriate.

24. In respect of s303(b), the Tribunal takes into account the circumstances leading to the two-year suspension imposed on the applicant in Re Griffiths. The Tribunal notes that in the present case the applicant has suffered significant financial loss during the period since the cancellation of her registration. The Tribunal is satisfied that she now understands the need to modify her behaviour as a migration agent and that she has taken steps to ensure that events similar to those leading to the cancellation of her registration will not occur again. Therefore, and for the reasons outlined in paragraph 22 above, the Tribunal concludes that the protection of the public and the maintenance of confidence in the registration process for migration agents would best be served by a period of suspension of 12 months from the date of the primary decision.

DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision that the registration of the applicant as a migration agent be suspended from 22 January 2002 until 21 January 2003.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 14 October 2002

Date of decision: 28 October 2002

Advocate for applicant: Mr G. Doran, solicitor

Solicitor for applicant: Nevett Ford

Advocate for respondent: Mr T. Fell, solicitor

Solicitor for respondent: Australian Government Solicitor