Feng and Migration Agents Registration Authority [2002] AATA 709 (20 August 2002)

Last Updated: 21 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 709

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1822

GENERAL ADMINISTRATIVE DIVISION )

Re SIMON FENG

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C, Deputy President

Date 20 August 2002

Place Sydney

Decision The decision under review is affirmed.

[sgd] The Hon R N J Purvis Q.C Deputy President

CATCHWORDS

Professions and trades - registration - migration agent - cancellation of registration - refusal to register applicant as a migration agent - whether applicant failed to comply with designated clauses of the relevant codes of conduct for migration agents - if applicant failed to comply, whether such failure is sufficient to warrant cancellation of registration - whether applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance

Migration Act 1958 sections 290, 290(1)(a), 303(h), 303(f), 314

Migration Agents Regulations 1998

Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Re Lilienthal and Migration Agents Registration Authority [2001] AATA 797;(2001) 66 ALD 249

Hughes and Vale Proprietary Limited and Anor and The State of New South Wales and Ors (No.2) (1955) 93 CLR 127

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324

Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272

REASONS FOR DECISION

20 August 2002 The Hon R N J Purvis QC, Deputy President

the application

1. This is an application made by Mr Simon Feng ("the Applicant") under date 28 November 2001 seeking review of a decision made by a delegate of the Migration Agents Registration Authority ("the Respondent") on 27 November 2001. By such decision the Respondent declined to re-register the Applicant as a migration agent.

2. In its reasons for arriving at the decision to refuse registration the Respondent inter alia stated (T2 p5-27):

"...

The Authority has considered all the available evidence, and pursuant to section 303(f) of Migration Act 1958 (the "Act"), the Authority is satisfied that the Agent is not a person of integrity and/or are not a fit and proper person to give immigration assistance.

The Authority has considered all the available evidence, and pursuant to section 303(h) of the Act, the Authority is satisfied that the Agent has not complied with the applicable Codes of Conduct prescribed under section 314 of the Act.

...

The Authority concludes that the Agent may have acted for some clients who submitted applications that the Agent would appear to have known were likely to have been misleading.

The concern of the Authority is that the Agent may knowingly submit applications that are either inaccurate, stand no prospects of success, or are fraudulent.

These issues go to the Agent's integrity as a migration agent and bring the migration advice industry into disrepute...

The Authority finds that the Agent has failed to comply with clause 7.5 of the Code of Conduct to have the records of the client account available for inspection, given the client and office account prior to 2001 were not separated from the Agent's Business Account.

...

As a result of an investigation conducted into the content and structure of these files [12 original client files], there were a range of breaches identified by the Authority and these are set out as follows:

2.1 Not acting in the interest of the Agent's clients

2.4 not having due regard to a client's dependence on the Agent

2.5 knowledge that is not adequate

2.8 poor client communication

2.9 misleading statements

2.19 duty to provide sufficient information to the decision maker

2.23 adversely affecting the reputation and integrity of the migration advice industry

Record keeping File management

While noting that the Agent has made attempts to correct the Agent's office practices, the Authority is concerned at the Agent's diligence, capacity and willingness to conduct the Agent's practice in accordance with the Code and associated requirements:

...

The Authority notes the significant lack of success in the Agent's applications. While an agent may have a significant lack of a successful outcome because of the nature of the client's circumstances, this may not be the case in respect of the Agent's practice.

...

Analysis by the Authority of a range of the Agent's client files show little or no file notes. There are only slight variations computer generated precedent style standard statements.

...

Clients' Common Claims

The Authority has carefully compared the client files the Agent provided, which includes the applications for protection visas and where applicable for Review to the RRT.

It would appear they are all, in some way, based on a proforma...There are frequently recurring paragraphs and ideas that could not possibly be common to each of the applications.

...

...they [the client statements]... are identical in various phrases or sentences...with very minor variations to take account of their personal biographical factors that are virtually irrelevant to the claims for protection under the Convention.

...

The Authority concludes that:

1. these documents were designed and prepared by the Agent and with little or no assistance or instructions by the Agent's clients

2. that the Agent knowingly prepared such material the Agent knew was incorrect in material particulars

3. that the contents of the statements do not properly reflect the circumstances of each client, including their knowledge of English and of Australia's political and democratic progress

4. there are no written instructions by any of these clients for the Agent to file applications in the RRT. In fact in some occasions fees are provided in contemplation of an RRT application, further reinforcing the parties are aware there is no prospect of success.

These infringe various elements of the Code of Conduct. It is however more serious in that these items have been identified by a random analysis and are perhaps further symptomatic of a more widespread pattern of conduct.

...

The Authority concludes that the statements [client statements] are prepared by the Agent without instructions from the Agent's client and this is not dissimilar to a pattern of conduct across a wide number of applications where similar facts are proffered as a basis to the claims.

...

...the Agent has encouraged the making of statements, which the Agent would know to be either misleading or inaccurate or both misleading and inaccurate.

...

The above applications and files provided to the Authority appear to confirm that the client has little or no role in the preparation of the application or in awareness of the content....The signatures on the various files indicate that the client does not have access to an interpreter at all material opportunity, as there is no signature by the interpreter.

...the client may not have understood the nature of the application.

...

Client communication

All or most of the files examined by the Authority show significant breaches of the Code in showing a lack of communication with the Agent's client(s).

....

...The Agent did not appear to submit the application in a form that fully reflects the circumstances of the individual and in turn prejudices the prospect of approval.

The Agent's lack of attention to these cases appears to have in part led to the adverse decision by the decision-maker and therefore may have prejudiced the Agent's clients' legitimate entitlements.

The Authority finds a lack of integrity..."

3. The Applicant in his application for review stated as his reasons namely:

"MARA failed to take into account submissions made on behalf of applicant.

Submissions made to MARA on 20.11.01 & 25.11.01 addressed all the main allegations levelled at the applicant, if these submissions had been considered MARA would not have had any substantive ground to refuse to grant the application for re registration. The decision is wrong & is causing serious financial & professional losses to the Applicant."

4. The Respondent was thus satisfied pursuant to section 303(h) of the Migration Act 1958 ("the Act") that the Applicant had not complied with specific provisions of the Codes of Conduct for Migration Agents made under the Migration Agents Regulations 1998 and the Act. In addition the Respondent was satisfied pursuant to section 303(f) of the Act that the Applicant was not "a person of integrity" or "otherwise not a fit and proper person to give immigration assistance".

issues for determination

5. As they were seen by the parties at the commencement of the hearing, the issues for determination were substantially:

* whether the Applicant is a fit and proper person to give immigration assistance for the purposes of section 290(1)(a) of the Migration Act 1958, so that the Applicant is eligible to be registered as a migration agent;

* whether the Applicant failed to comply with the Code of Conduct for immigration agents applicable at the relevant times as prescribed by the Migration Agents Regulations pursuant to section 314(1) of the Act;

* whether the Migration Agents Registration Authority failed the requirements of natural justice in its dealings with the Applicant;

* whether the decision made by the Respondent on 27 November 2001 pursuant to section 290 of the Act to refuse the Applicant's application for registration is the correct and preferable decision.

the hearing

6. At the hearing of the application, the Applicant was represented by Mr L Karp of Counsel, the Respondent by Mr A Markus of the Office of the Australian Government Solicitor.

7. There was tendered into evidence the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1-T48 and Supplementary Documents S1-S39. The documents tendered by the parties and admitted into evidence were:

Exhibit No Description Date

A Letter from Ashfield Parish Mission 24 April 2002

B Letter from Terry Ng, Property Manager. 25 April 2002

C Witness statement of Simon Feng 23 April 2002

D Immigration Advice & Rights Centre's enrolment documents 20 May 2002

E Receipt and Tax Invoice from Migration Professional Education 11 June 2002

I Copy of letter from Ausmon International Migration, Education & Commerce 3 February 1998

8. The Applicant gave written and oral evidence upon which he was cross-examined.

relevant statutory provisions

legislation and codes

9. The provisions of the Act relevant to this application are:

"4 Object of Act

(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens.

...

290 Applicant must not be registered if not a person of integrity or not fit and proper

(1) An applicant must not be registered if a Migration Agents Registration Authority is satisfied that

(a) the applicant is not a fit and proper person to give immigration assistance; or

(b) the applicant is not a person of integrity; or

...

(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a) the extent of the applicant's knowledge of migration procedure; and

(b) whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound; and

...

(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

...

(h) any other matter relevant to the applicant's fitness to give immigration assistance

303 Discretionary cancellation or suspension of registration etc.

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

....

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

...

(h) the agent has not complied with the Code of Conduct prescribed under section 314

314 Code of Conduct for migration agents

(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 relevant clauses of the Codes of Conduct are:

Code of Conduct as of 1 August 1996

...

(8) Whilst an agent cannot be responsible for misinformation provided by a client, an 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.

...

(14) An agent should not encourage the lodgement of vexatious or grossly unfounded applications under the Migration Act or Migration Regulations; e.g. applications under the Migration Act or Migration Regulations which have no hope of success.

...

(27) An agent must maintain records that can be available for inspection on request by the Migration Agents Registration Board, including files containing a copy of each client's application, copies of written communication between the client and the agent, and file notes of each oral communication between the client and the agent.

..."

CODE OF CONDUCT AS AT 1 APRIL 1998

10. The provisions contained in this Code are largely subsumed into the Code as at the 28 April 2000 and are not thus set forth in detail in these reasons.

CODE OF CONDUCT AS AT 28 APRIL 2000

"PART 2 - STANDARDS OF PROFESSIONAL CONDUCT

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.

...

2.8 A migration agent must:

(a) within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing; and

(b) act in accordance with the client's instructions; and

(c) keep the client fully and regularly 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 While a migration agent cannot be responsible for misinformation provided by a client, an 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.

...

2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:

(a) must not encourage the client to lodge the application; and

(b) must advise the client that, in the agent's opinion, the application is vexatious or grossly unfounded; and

(c) if the client still wishes to lodge the application - must obtain written acknowledgment of the client of the advice given under paragraph (b).

2.18 A migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person's visa ceases to be in effect.

2.19 Subject to a client's instructions, a migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, an agent should avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.

...

2.23 A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.

2.24 This Code is a responsive document that will change from time to time to meet the needs of clients and to ensure the delivery of relevant, up to date advice.

PART 3 - OBLIGATIONS TO CLIENTS

...

3.3 A migration agent must inform clients that they are entitled to receive copies of the application under the Migration Act or Migration Regulations and any related documents if they want copies. The agent may charge a reasonable amount for any copies provided.

...

3.6 A migration agent must ensure that clients have access to an interpreter if necessary.

PART 5 - FEES AND CHARGES (11)

...

5.2 A migration agent must:

(a) before starting work for a client, give the client an estimate of fees in the form of charges for each hour or for each service, and an estimate of time likely to be taken in performing a service; and

(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and

(c) give the client written confirmation of the terms of the service to be rendered; 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.

5.3 A migration agent:

(a) should not carry out work in a manner that unnecessarily increases the cost to the client; and

(b) should, if outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost; and

(c) should, especially if a solicitor or barrister, warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example:

(i) any need to engage and pay expert witnesses;

(ii) the need to meet legal costs if a case were lost;

(iii) the need to pay Departmental fees and charges;

(iv) the need to pay translation and interpreter fees and charges.

PART 6 - RECORD KEEPING AND MANAGEMENT(12)

6.1 A 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

(c) file notes of every substantive or material oral communication between:

(i) the client and the agent; and

(ii) the agent and an official of any relevant statutory authority.

...

PART 7 - FINANCIAL DUTIES

7.1 A migration agent must keep separate accounts for:

(a) the agent's operating expenses (the operating account); and

(b) money paid by clients to the agent for fees and disbursements (the clients' account).

7.2 A migration agent must hold fees paid by a client in the clients' account until the work that the agent has been contracted to do for that client has been completed.

7.3 The agent may, at anytime, withdraw money from the clients' account for disbursements that are required to be paid to the Department, or any other agency, for the client.

7.4 A migration agent must keep records of the clients' account, including:

(a) the date and amount of each deposit made to the clients' account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and

(b) each withdrawal made from the clients' account; and

(c) receipts for any payments made by the client to the agent; and

(d) copies of invoices or accounts rendered in relation to the account.

7.5 A migration agent must make the records of the clients' account available for inspection on request by the Authority.

7.6 Nothing in clause 7.1, 7.2, 7.3 or 7.4 affects the duty of a migration agent, who is also a legal practitioner and who acts in that capacity, to deal with clients' funds in accordance with the relevant law relating to legal practitioners."

person of integrity - fit and proper person

11. The discretionary cancellation, suspension or non-registration provided for by the Act enables the Respondent to refuse registration, if it becomes satisfied that so far as is here relevant, the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. Section 290 of the Act is mandatory; section 303 is discretionary in its operation. In the present application, the Tribunal is required to satisfy itself inter alia as to whether the Applicant is not a person of integrity. "Integrity" means "soundness of moral principle and character; uprightness; honesty" (see Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 at paragraph 26).

12. The Tribunal is also to give consideration to whether the Applicant is otherwise not a fit and proper person to give immigration assistance. In Re Peng and Department of Immigration and Multicultural Affairs (supra) (paragraph 26) it was stated:

"The use of the word "assistance", in my view, extends not only to help given to would-be applicants, but also help given to the Department in the administration of immigration programs. In that regard, frankness and truth are of primary importance... If these standards are important in relation to individual applications, how much more important are they in relation to those who will, in the course of their practice, make many representations to the Department on behalf of those seeking to deal with immigration matters. The requirement to display integrity and fitness in order to qualify for registration as a migration agent has an element of mutuality. The need for probity is not only for the protection of the clients but also for the open, honest and efficient administration of immigration matters in which the agent is involved."

13. As it was said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155-156:

"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia."

14. As was noted in Re Lilienthal and Migration Agents Registration Authority [2001] AATA 797; (2001) 66 ALD 249, the Tribunal agrees with and endorses these statements of relevant principles.

15. A consideration as to whether or not an applicant is a person of integrity cannot be disassociated from the character of that person. It is on account of the above mentioned significant position occupied by a migration agent that she or he is required to be a person of integrity or otherwise fit and proper to give immigration assistance. The responsibilities entailed in the rendering of assistance extend not only to prospective visa or migration applicants but also to the Department administering the legislation. As was stated in Hughes and Vale Proprietary Limited and Anor and The State of New South Wales and Ors (No.2) (1955) 93 CLR 127 at 156, fit and proper :

"...with respect to an office is said to involve three things, honesty, knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.' "

16. The concept of fitness and probity is not however to be narrowly construed or confined. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 and affirmed in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324 at 328 it was stated:

"The expression "fit and proper person," standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

17. There is an explicit link then between fitness and probity on the one hand and character on the other.

18. The establishment of good character is important in various areas of immigration practice. In the present application, the Tribunal is invited to assess the character of the Applicant in the context already discussed, of the manner of his dealing with a number of clients and in his conduct in relation to migration affairs generally.

19. The Migration Agents Registration Scheme administered by the Migration Agents Registration Authority is one that:

"...seeks to achieve that object (effective administration of the Act) by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity. "

(Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272 at 294).

20. To insure effective and proper administration of the Act, the Respondent is entitled to be able to rely upon the honesty of those registered with the Department.

the factual background - generaly

21. The Applicant was born in China on 22 October 1952. He attended university in Shanghai obtaining a tertiary diploma and a master's diploma in English. He first entered Australia in February 1988 on a student visa, obtaining permanent residence in 1994. The Applicant has worked in Australia as a part time teacher of English, as an interpreter and a translator.

22. Following attendance at a three day course in Migration Law and Practice at the University of NSW, the Applicant became registered in 1995 as a migration agent and practised as such until his registration was not renewed in 2001.

23. Over the time when he was in practice, the Applicant says that he gave advice and acted for and on behalf of clients in relation to various categories of visa applications, but mainly protection and "long stay" visas. Nearly two thirds of his practice related to protection visas and one quarter to "long stay" visas.

24. The Applicant admitted, as hereinafter noted in more detail, that his clerical and administrative practices were deficient in many respects. He did not take and retain notes or keep notes on file in accord with the Code of Conduct. He did not keep notes of claims made by clients. He did not keep notes of telephone conversations. He says, when he considered applications for protection visas to be "hopeless", he informed the clients and had them sign a form pursuant to clause 2.17 of the relevant Code of Conduct.

25. The Applicant admits that his file management and record keeping was poor and that as a result he breached various provisions of the Codes and especially clauses 2.8(a), 2.8(c), 6.1(b), 6.1(c) and Part 7 of the relevant Code. He does say however, that he had taken steps to rectify the deficiencies before the non-renewal of his registration and that he has undertaken and will undertake further courses to improve his office administration and ensure compliance with the relevant provisions of the Code.

26. The Applicant denies any impropriety or lack of integrity in his dealings with any of his clients or in his relationship with the Respondent.

27. The Respondent maintains that since the Applicant's registration as a migration agent in 1995, the Applicant has been the subject of a number of complaints. It was during the investigation of these complains that many of the matters now of concern to the Respondent became apparent. The Applicant in July and August 2001 appeared before an officer of the Respondent, was questioned and gave answers. He was also in June and July 2001 called upon to provide documents and records relating to his continued registration.

28. On the 26 September 2001 the Applicant applied for a renewal of his registration. The Respondent, having indicated its concern, sought further information and submissions from the Applicant and considered the matter on 27 November 2001. The application for registration was refused. It is from the latter decision that the present appeal arises.

29. Over the period the Applicant practised as a migration agent, he acted in relation to between 640 and 690 applications, which may be categorised as long term visas 100 to 150, protection visas 400, spouse visas 70, student visas 30, family reunion and aged visas 20 and independent visas 20. Of the applications for protection visas, only one was successful and of the "long stay" visas only three were successful prior to 24 August 2001.

30. The Applicant acknowledged that it was not his practice to retain notes made of instructions received, sometimes however he "would write them down" and sometimes "they would be typed by a friend/assistant".

31. The Applicant's standard fee for a visa application was $500.00, but in respect of a number of applicants he charged a fee of only $200.00. The latter primarily related to protection visa applications. He admitted lodging applications, where he realised or concluded that there was "no hope" of success, but denies encouraging people to lodge applications "without hope" and making applications to the Minister realising that there was "no hope". When it was suggested to him, that he assisted in putting forward protection visa applications merely to enable people to obtain employment, he said that it was "not my job to see applications approved or not" and "I did not assist in abuse of the migration system." He denied ever encouraging clients to apply for visas "so they could work". He acknowledged that at least in 95 per cent of the protection visa application cases that he handled there would have been a notice pursuant to clause 2.17 of the Code that he had advised a client as to the claim being "hopeless".

matters of concern

32. The matters and areas of concern to the Respondent that led to the refusal to register the Applicant, fall into the fallowing categories:

1. Specific complaints in respect of clients including Ms Mifsud, Ms Abraham and Mr Halim;

2. The results obtained from a statistical analysis;

3. The state or condition of the "financial records" as maintained by the Applicant;

4. Adverse consequences of a file audit;

5. The provision or lack of provision of interpreter services;

6. Insufficient communication with clients;

7. Vexatious applications; and

8. The Applicant's knowledge of the migration law.

33. Each of these areas of concern will be separately considered.

specific complaints regarding clients

ms mifsud/ms abraham

34. Protection visa applications made in respect of the above named two clients, allegedly bore remarkable similarities in a number of respects, including details of the applicants' backgrounds, their claims of persecution, their departure from their country of origin, arrival in Australia as well as in documentation provided in support of the application. The Applicant maintained that the two ladies attended his office together and presented "similar stories". He says that he translated instructions received and explained to the clients the criteria that needed to be satisfied, but was of the view that "their applications have no hope". The Applicant's files relating to Ms Mifsud and Ms Abraham contained no record of any such advice having been given.

35. The Respondent contends and the Applicant admits that he failed to comply with clause 6.1(c) of the Code, failing to keep a file note as thereby required and that he breached his financial duties under Part 7 of the Code. The Respondent contends and the Applicant does not concede that he failed to confirm his clients' instructions in writing, that he breached his fee obligations and duties under the Code and that the Applicant's agreement with the clients did not comply with clause 5.3 of the Code. The Respondent contended that the Applicant either did not advise the clients, or he did not obtain a written acknowledgment of advising the clients that their claims were unfounded or vexatious. The Respondent also maintained that the Applicant encouraged the making of statements in support of the applications, which he knew or believed to be misleading or inaccurate. With respect to the latter two contentions, the relevant Code was the 1996 Code, which was not so stringent as that presently in operation.

36. There is not any evidence that the Applicant confirmed instructions received in writing. There is not any evidence that the Applicant obtained a written acknowledgment of his advice, allegedly given as to the applications being unfounded or "hopeless". The absence of file notes and the similarity of the claims made, gives support to the contention that the statements contained information that the Applicant knew or believed to be misleading or inaccurate.

37. The Tribunal is satisfied that the contentions raised by the Respondent have been made out.

mr halim

38. A subclass 866 protection visa application was lodged by the Applicant on Mr Halim's behalf on 19 December 1997 and refused on 26 March 1998. Mr Halim himself made an application for review on 11 May 1998. It is alleged by the Respondent that the Applicant falsified Mr Halim's application for a protection visa by including in the application inter alia that Mr Halim was "...part Chinese and that for political reasons he had been expelled from University for speaking out against Suharto...". It is further alleged that the Applicant told Mr Halim that he could stay in Australia as "an illegal refugee" and that there was likely to be an amnesty during the Olympic Games. It is further alleged that Mr Halim was poorly advised regarding the nature of the visa for which he should apply.

39. The Applicant maintains that Mr Halim himself sought a protection visa and that he obtained express instructions on the above matters from his client. Mr Halim allegedly read the application and signed it. The Applicant denies encouraging Mr Halim by talk of an amnesty. It was further alleged that the Applicant neglected obtaining information as to Mr Halim's change of address as a consequence of which a bridging visa granted to him expired by reason of notice not being given and Mr Halim then found himself unlawfully in Australia. The Applicant maintains that Mr Halim took away from his possession the original of the file in May 1998 and as aforementioned did not advise him of a change of his address. This even be it that a change of address letter was received by the Department in February 1998 (Exhibit 1).

40. Mr Halim was not called to give evidence at the hearing of the application and the Respondent's contentions were reliant upon documents made available to it by the Refugee Review Tribunal.

41. The Respondent contends and the Applicant admits that in relation to Mr Halim, he failed to keep a file note of communications between himself and his client and that his basic office procedure prospectively may have adversely affect his client's interests. The Applicant admits failure to keep a copy of a letter relating to Mr Halim's change of address, that he failed to keep Mr Halim fully and regularly informed in writing and notify him of the outcome of the visa application and that he failed to "act in a timely manner". The Applicant further admits his lack of appropriate office procedure meaning that he was unable to communicate with his client to seek instructions and that no client account records were available for this period. He admits errors in the client's statement in support of the application, which were attributable to him. The Respondent further contends and the Applicant disputes, that he failed to confirm his client's instructions in writing, that he failed to notify his client of an entitlement to receive a copy of the application, that he failed to have due regard to his client's dependence on his knowledge and experience as a migration agent, that he did not provide adequate access to an interpreter and that his dealings with Mr Halim displayed a lack of professional competence.

42. The Applicant admits failing to keep file notes but as to any adverse effect on Mr Halim says, that this was minimal as Mr Halim was given a hearing by the Refugee Review Tribunal on the merits of his application. The Applicant further says that he is fluent in Mandarin and that he gave such advice as was proper at the time.

43. The Applicant says that Mr Halim "wrote his own story" and the interchange between he and his client was in a mixture of English and Mandarin. He said that he did not see his client between the time he signed the visa application and until a time after his visa had expired.

44. The Tribunal is satisfied that there is no evidence as to the Applicant confirming his client's instructions in writing, notifying the client of his entitlement to receive a copy of his application and of errors being made in the statement provided in support of the application. However, in the absence of Mr Halim being called to give evidence, the Tribunal must rely in relation to the other matters on the file maintained by the Refugee Review Tribunal. It is open to this Tribunal to receive such material and give it such weight as is appropriate. However, when the Respondent seeks to rely upon statements made by a person contained in documents and in support of its contentions, it is desirable for an Applicant to be given the opportunity of testing such written statements. That opportunity was not afforded to the Applicant in the present proceedings. Accordingly, where the Applicant has denied contentions or statements purportedly made by Mr Halim and in the absence of any other corroborative material, this Tribunal is disinclined to maintain the contention.

45. Except as latterly mentioned, the contentions referable to Mr Halim, as above noted, as admitted by the Applicant and as found by the Tribunal are to be maintained.

statistical findings

46. Of 105 applications for subclass 457 visas submitted by the Applicant, only three were approved. 49 applications were submitted to the Refugee Review Tribunal between 1 July 1999 and 30 June 2000. In all instances the decision under review was affirmed. In 86 per cent of these latter cases, the clients did not attend a hearing before the Refugee Review Tribunal. Mention has earlier been made of the lack of success in relation to protection visa applications. When the Applicant was unable to provide an acceptable explanation as to the statistical findings and agreed during the course of his questioning by an officer of the Respondent, that the lack of success rate may well have been attributable to the antecedents of the applicants. "I'm sure some of them were arrested and had committed crimes in China" he said. He also agreed to false information having in all probability been provided to the Departmental officers.

47. The Respondent contends and the Applicant denies that he acted for some clients who submitted applications, that the Applicant knew were misleading, that the applications were either inaccurate with no prospects of success or fraudulent and that his conduct demonstrated a lack of fitness and probity on his part to be a migration agent.

48. The Tribunal can do no more than note the singular lack of success on the part of the Applicant and conclude, that either the Applicant was prepared to put forward applications supported by statements of alleged facts and circumstances, which he knew were insufficient for the purpose of a visa being granted, or he acted for clients regardless of the merits of the applications. The Tribunal is satisfied on the basis of the evidence before it, that many of the statements made in support of visa applications, bear signs of similarity such as to lead an observer to conclude that they were at least in part concocted, whether by the clients or the Applicant cannot be ascertained. However, it is apparent that the Applicant was aware of or appreciated the prerequisites for applications to have a measurable chance of success. The Tribunal is satisfied that the Applicant did act on behalf of clients regardless of whether their applications appeared to him to be "hopeless" or not. In the vast majority of cases he concluded that they were "hopeless" yet he enabled the applications to be put forward. As has earlier been indicated in these reasons, a migration agent is not merely a conduit between a client and the Department. An agent is expected under the Act and the Codes of Conduct to exercise an independent judgment and assessment of the information provided by a client and structure an application accordingly. An agent is said to be a professional person and if this be so, the agent is expected to exercise objective and independent judgment in relation to clients and applications.

49. It was maintained on behalf of the Applicant, that even be it that he believed many of his clients may have been criminals, by reason of information that had come to his attention, this was not a proper basis for his not acting for them. The latter may be so as such. But it should have put the Applicant on notice as to the probabilities of the correctness or otherwise of the information provided to him.

50. The Tribunal is satisfied on the basis of the evidence before it that the Applicant did act for clients in circumstances where he knew, ought to have known, or deliberately refrained from ascertaining that the information provided was misleading or incorrect. Such applications were submitted to the Department, the Applicant being well aware that they had "no prospects of success". In this regard the Applicant did not and has not by his denials demonstrated a fitness and probity to be a migration agent. He might well have recognised in this regard the deficiencies in his past conduct. He did not do so. He still maintained at the hearing that he did not need to exercise independent judgment or make an assessment of the veracity of the information provided to him. The belief hardly reflects the aforementioned professionalism that the position of a migration agent warrants.

financial records

51. It is contended on behalf of the Respondent that from the time of his registration as a migration agent until May 2001 the Applicant did not maintain a client's account. Receipts issued were only in respect of costs and did not include all payments or disbursements by and on behalf of a client. It was admitted on behalf of the Applicant that he had failed to comply with the relevant clause of the Code of Conduct in not having records of clients accounts available for inspection and not having his client and office accounts separated from one another and from his business account. More specifically the Applicant admits that he has not "confirmed instructions in writing, kept in written contact with clients, and kept file notes of every substantial and material conversation with clients". He said that it was only after his interview with the officer of the Respondent that he realised his non-compliance with the Code and than began to reorganise his files. He also said that he intends to commence a TAFE Small Business Course as soon as possible. So far as acknowledging his clients' instructions in writing, the Applicant maintained that the relevant service agreements were regarded by him as acknowledgment and acceptance of instructions. The Tribunal does not consider that this was sufficient. It may be noted, as was maintained by Mr Karp on the Applicant's behalf, that whilst his financial records were deficient to say the least, there is no allegation of financial impropriety made against him.

file audit

52. A representative of the Respondent attended the Applicant's office and examined not less than 12 original client files. It was ascertained that,

(a) the Applicant's client files showed little or no evidence of file notes being maintained. Indeed, it was said that there was no document representing notes taken as a basis for statements that were part of the protection visa applications. There was not any written evidence confirming instructions to apply to the Refugee Review Tribunal on behalf of clients.

(b) The significant lack of success in visa applications lodged by the Applicant became apparent from the file audit. The Applicant admitted that applications were prepared by him even where "it's a hopeless application. And as I explained before in my letter to MARA, they just put a story which is not related to any Convention reason" (T34, p182).

(c) Statement of Services forms relating to review applications were not completed where applications had been submitted to the Refugee Review Tribunal. In instances, where the Refugee Review Tribunal had invited a client of the Applicant to give oral evidence, there was no copy of the letter or the original letter on the Applicant's file. Likewise there was no copy of a response to the Refugee Review Tribunal on the Applicant's file. The inference is open to the effect that the Applicant's client was neither consulted in relation to any response nor involved in the presentation or arguments provided to the Refugee Review Tribunal. No records were located relating to copies of invoices nor client account statements.

The Tribunal is satisfied that the Applicant did not maintain separate office and client accounts until July 2001.

(d) The commonality in statements provided in support of visa applications has already been noted. An examination of such statements and the presence of frequently recurring paragraphs and ideas bear witness to the contention made in this regard. The Applicant maintained that in respect of a number of his clients, the same interpreter was used and even so he informed them that "their case was hopeless...Each insisted on proceeding with the application... In cases where their reasons for wanting to stay in Australia were identical I used identical language...In each case the client's statement was read back to her in Thai by the interpreter". (Exhibit C paragraphs 18 and 19).

The Tribunal has no hesitation in accepting that the various statements supporting these applications were similar the one to the other and as referred to in (e) below reflect the fact of either the clients themselves concocting their stories in unison, or the interpreter doing the same with or without the assistance of the Applicant. It should have been apparent to the Applicant that commonality the like of that apparent from the records did not reflect a truthful situation.

(e) (1) The Respondent maintains that the clients' statements appearing in the files reflected identical phrases and sentences, style and content with minor variations to take account of personal factors. The identical phrases or words are apparent and not such as would occur in the absence of either the existence of precedents or a person being in the habit of using the same phrases, terms and explanations, time and again. It was suggested by Counsel that commonality did not amount to misconduct. Of itself, this may be true. However, when it occurs as in this matter and as is apparent from the written statements provided in support of and for the purpose of maintaining a refugee status, the submission cannot be maintained.

(2) It is suggested that in some cases it is apparent that "a cut and paste of other documents in other client cases" might well have occurred. In one instance there is a clear inconsistency in the document itself, the client maintaining the existence of a difficult situation in Thailand and at the same time that hardship would be experienced "if I return to China" (S28).

The Respondent contends and the Applicant admits there are no written instructions by any of the clients to file applications in the Refugee Review Tribunal. Fees were paid to the Applicant even before an initiating application had been lodged in contemplation of a Refugee Review Tribunal application even be it, that clients had been informed that their claims were "hopeless". The Respondent contends and the Applicant denies that the documents provided by the Applicant on behalf of his clients were designed and prepared with little or no assistance or instructions from the clients, that he knew the material was incorrect in material particulars and that the same did not properly reflect the circumstances of each client. By reason of having examined the documents and noted the submissions made on behalf of the parties in this regard, the Tribunal is satisfied that little or no assistance was in fact provided by or to the clients and that the Applicant knew, or should have known the true status of the material and that he acted regardless of the correctness or otherwise of the material particulars and the circumstances of his clients.

(3) It is further contended on behalf of the Respondent, that from an examination of the files, there is little evidence of clients having the advantage of an interpreter so as to understand the nature of the claims made on their behalf, and that there is not anything in the files to indicate that a client knew what was being said on the client's behalf in relation to the protection visa and the Refugee Review Tribunal. Claims made on behalf of clients bore striking similarity to one another, even be it that the clients came from different backgrounds. It is contended on behalf of the Respondent and the Tribunal accepts that the Applicant encouraged the making of statements, which he knew to be misleading and/or inaccurate.

53. In respect of two clients, a Mr Chen and a Mr Zeng, the Applicant said they were from neighbouring towns or villages, they gave very similar stories and he admitted that he "copied some of the language of the first on to the second. The statements reflect what was told to me by the clients. I did not encourage either of them to give a false statement". The Applicant said that he "spent a lot of time asking them about the routes they took" and noted that their "language was similar". He maintains that the statements were read over to them. He agreed during the course of his cross-examination that their claims were "hopeless, they did not have a well founded fear and from what they told me and the reasons given for their claims were not strong." He admitted that the allegations were generalised that there was no detail at all, as to how they left their country. The Applicant's only comment was "this is a problem". There were no notes or documents maintained by the Applicant as to instructions received from either person. The Applicant said that they were "thrown away". He agreed that the statements contained "no attempt to address the criteria relevant to their applications".

54. It is alleged on behalf of the Respondent, that the Applicant was drafting applications, which were designed to fail, and that he was using the Act and the machinery of the Act for an improper purpose. The improper purpose suggested was to enable the clients to remain in Australia for an extended period of time, whilst their initial false applications and inappropriate appeals were being processed. The observations made and conclusions drawn from the examination of the files gives support to this contention. The Applicant admitted being aware that applications drafted by him and in respect of which he obtained or provided statements were in the majority of cases "hopeless" and thus it may be said, designed to fail. The effect of such conduct was as the Tribunal sees it, to enable the Act and the machinery provided for by the legislation to be used for a purpose other than the due and proper processing of genuine applications for valid visas.

access to interpreter

55. The Tribunal has earlier considered the evidence referable to the provision of an interpreter for clients of the Applicant. The files examined on behalf of the Respondent "suggest that the clients have little or no role in the preparation of the application or in awareness of the content of those documents". The absence of signatures in the various files is such as to support a contention that the clients did not have appropriate or proper access to an interpreter. The Applicant said that in relation to a number of his clients the same lady, attended with them. "They came together and Ho acted as interpreter, she had no Australian interpreter qualifications". The Applicant admitted that it was "suspicious to me that Ho was bringing women in relation to protection visas, I was sometimes wondering". Whilst the statements in relation to some of the female clients of the Applicant did indicate that another person might have been present, in that the interpreter's declaration bore a signature. It was the same signature in each case of a person not provided by the Applicant.

56. The Tribunal cannot be satisfied that a person fluent in the clients' native language was not usually present and particularly in relation to the female clients of the Applicant. There is no evidence that a person described as "Ms Ho" was qualified as an interpreter, even be it she invariably arrived with the clients. The Applicant himself is fluent in Mandarin. It is clear from the evidence before the Tribunal that greater care could have been taken to ensure that the presence or otherwise of a qualified or competent interpreter was clearly indicated. This would have been aided if statements provided by clients were maintained in the Applicant's files, either in their original language or as interpreted. There is doubt as to the provision of appropriate interpreters. The Tribunal is satisfied that there is justification for the contentions made in this regard.

client communication

57. The Respondent maintains that most of the files produced, show significant breaches of the Code in displaying a lack of communication with the Applicant's clients in respect of the taking and recording of instructions, provision of advice in writing, written confirmation of the terms of the service and fees, and advice in writing of the outcome of a decision. The Respondent also maintains that apart from basic biographical details there is little evidence of written communications with clients and that the handwriting on file notes "leave open an inference that some clients may not have attended the Applicant's office at all". From an examination of the file notes, the latter mentioned inference is open.

58. In this regard, the Respondent contends and the Applicant admits, that he failed to keep a file note of every substantive oral communication between himself and his clients, and that he failed to keep his clients fully and regularly informed in writing or notified them of the outcome of the decision in writing. He also admits under Part 7 of the Code that no client account records have been provided for the files. The Respondent contends that the Applicant failed to confirm instructions in writing, failed to notify clients of an entitlement to receive a copy of applications, failed to have due regard to a client's dependence on his knowledge and expertise, and failed to ensure a client's understanding of procedures.

59. It was submitted on behalf of the Applicant, that all of the deficiencies alleged on behalf of the Respondent can be attributed to lack of paperwork, procedure, and inefficiency in the Applicant's office. The Tribunal does not see it this way. On the evidence before it or lack of evidence, the Tribunal is satisfied that the Applicant did fail to confirm instructions to notify his clients of their entitlement to receive a copy of their applications, did fail to have due regard to clients' dependence on knowledge and experience that he should have possessed and did fail to ensure that his clients understood the procedures.

vexatious applications

60. The Respondent contends that many of the applications made by the Applicant were without foundation and that they were put forward by the Applicant in situations where he acknowledges that they had no chance of success. Some of the files reveal that a client had not finished a statement or completed an application before acknowledging advice that a claim was "hopeless". In many cases, applicants had signed a consent to pursue an application to the Refugee Review Tribunal, even prior to the application being initially submitted to the Department. In no case did the applicants appear to have been informed of the financial consequence of an application to the Refugee Review Tribunal being unsuccessful.

61. The contentions made on behalf of the Respondent in relation to the nature of most of the protection visa applications prepared by the Applicant are justified.

knowledge of migration law

62. The totality of the evidence is such as to reveal the Applicant as one who utilised the Act and the procedural provisions in order to perfect the scheme sought to be put in place by his clients. In many instances, the material contained in the statements forming a part of an application did not reflect circumstances sufficient to warrant the case sought to be made and were such as could prejudice due consideration being given by the Department to the status alleged. It is said that legitimate entitlements of clients may have been so prejudiced. It was also maintained that the Applicant may have failed to advise clients on visa options. Whilst the contention made on behalf of the Respondent is one that is open on the material before the Tribunal, it is not satisfied that lack of knowledge of migration law in relevant respects as contended on behalf of the Respondent has been made out. The Applicant may well have acted regardless of his knowledge.

submissions and decision

63. Whilst the Applicant admits to the aforementioned deficiencies in the maintaining of appropriate records, notes and statements and defects in the preparation of applications, it was submitted that the similarity of claims may also result from such deficiencies and "similarity of experiences or in the clients themselves taking their claims from a common source." It was further maintained that there is no obligation on a migration agent to "investigate a client's character or to cease acting if not satisfied that the client is being truthful". The fact that "an agent acts for a person who is of questionable character, does not in itself reflect on the reputation and integrity of the migration advice industry". So it was maintained. The Tribunal however, whilst accepting that in a general sense these submissions have merit, is required to consider the totality of the material placed before it and the conclusion that may properly be drawn as to the participation of the Applicant in the preparation of applications that have no merit.

64. It was submitted on behalf of the Applicant, that a finding as to a lack of integrity should not be made even be it that a finding referable to incompetence might be appropriate. It was submitted that the Applicant had been honest in answering questions put to him by an officer of the Respondent, that he had disregarded his own interests and did not hide or obscure his own wrongdoing. There was no evidence of enrichment. The attention of the Tribunal was drawn to the financial hardship experienced by the Applicant consequent on the registration refusal and the distress that he had experienced as the result of his marriage break-up. There was also said to have been an adverse effect on his two young children.

65. These latter matters are to be taken into consideration.

66. On behalf of the Respondent it is contended that there are now the separate issues to be considered, competence as a migration agent, the Applicant being a fit and proper person to give migration assistance and the Applicant being a person of integrity.

67. The provisions of the Act referable to registration of migration agents are to be construed in such a way, as to advance the purpose of the legislation. The object of the Act is "to regulate in the national interest, the coming into, and presence in Australia of non-citizens". The role played by migration agents in the system is a matter of national interest and questions as to whether the person is a fit and proper person or a person of integrity to be registered as a migration agent are to be considered in the context of requiring a finding of probity on the part of the person in addition to honesty, knowledge and competence in performing the duties of such an agent. Clients of migration agents are entitled to be able to rely on the honesty of those registered with the Respondent. The standard of probity is to be determined by considering the role that a migration agent plays in discharging the responsibilities of the position. In dealing with non-citizens, agents may well have as clients persons who by reason of their lack of familiarity with the Australian law and procedures or language are totally dependent upon the agent. In dealing with the Department, agents will be dealing in areas, which range from the national interests to discharging international obligations and enforcing aspects of the criminal law. Because of the fact that the duties that they perform are central to the national interest, migration agents should be persons of the highest probity and integrity.

68. As it was submitted on behalf of the Respondent, the statutory obligation resting upon it and this Tribunal is

"to inquire into and assess the conduct of the agent in the context of the relevant statutory provisions. That is not only inquiring as to whether there had or had not been compliance with the Codes of Conduct ...but to investigate whether the agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. This entails establishing and assessing on the relevant material whether there had been a non-compliance with a Code of Conduct or whether an assessment could be made as to the integrity or fitness of the individual".

69. The Tribunal is satisfied as hereinbefore set forth, that as to the areas of concern raised by the Respondent, the specific complaints referable to Ms Misfud and Abraham have been made out and that referable to Mr Halim made out to the extent indicated. The concerns raised under the heading of statistical findings and financial records have been maintained. The conclusions to be drawn from the file audit have as hereinbefore detailed been substantially made out. The concerns referable to access to an interpreter are justified but those referable to knowledge of migration law are not maintained. Concerns referable to client communication and vexatious applications have as hereinbefore stated been maintained.

70. The Tribunal is satisfied that the concerns raised as they relate to the presence or otherwise of competence, accountability and the maintaining of appropriate standards of service have been established and were such as to warrant a refusal to register. The Tribunal is also satisfied that the material before it is sufficient to show that the Applicant prepared applications with little or no regard to the individual circumstances or claims of particular clients. Indeed, there is an apparent lack of regard for the interest of clients including a lack of communication with them. The material further shows a failure on the part of the Applicant to appreciate the obligation that he had to the Department in the lack of a provision of relevant information in aid of a successful processing of applications. More significant however, is the evidence before the Tribunal, which is sufficient to and does establish that the Applicant knew, or ought reasonably to have known, that many of the applications made by him on behalf of clients were misleading or inaccurate and did not reflect the facts and circumstances of the cases of individual clients.

71. By reason of the findings above made, it may not be necessary to consider instance by instance the impact of the Applicant's conduct. In Re Lilienthal and Migration Agents Registration Authority (supra) at paragraphs 103-106, consideration was given to the significance to be attached to numerous instances of misconduct and the conclusion to be drawn from the occurrence on many occasions of similar instances of inappropriate practice and/or behaviour. The Tribunal does not repeat in these reasons what was said in that decision but confirms the same.

72. For the reasons hereinbefore set forth, the Tribunal is satisfied that the Applicant is not a fit and proper person to give immigration assistance for the purposes of section 290(1)(a). He is presently ineligible to be registered as a migration agent. The Applicant failed to comply with the Codes of Conduct in the various respects hereinbefore indicated. The Migration Agents Registration Authority did not fail in the requirements of natural justice in its dealing with the Applicant. Indeed, at the hearing no matters were raised of significance referable to this alleged issue. The decision made by the Respondent on 27 November 2001 to refuse the Applicant's application for registration is the correct and preferable decision.

73. For the reasons hereinbefore set forth the decision under review is affirmed.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon Mr R N J Purvis Q C, Deputy President

Signed: H Sim .....................................................................................

Associate

Dates of Hearing 30 April 2002., 1 May 2002 and 2 June 2002

Date of Decision 20 August 2002

Counsel for the Applicant L Karp

Solicitor for the Applicant M Urquijor

Solicitor for the Respondent A Markus