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Administrative Appeals Tribunal of Australia |
Last Updated: 21 November 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
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Re |
SUHANDA LESMANA |
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And |
MIGRATION AGENTS REGISTRATION AUTHORITY |
Tribunal |
Ms N Bell, Member |
Decision
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The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant should be registered as a migration agent. |
CATCHWORDS
IMMIGRATION - Respondent refused application for registration as a migration agent - application refused on the basis that the Applicant is not a fit and proper person to give migration assistance or a person of integrity - Respondent considered Applicant had practised as a migration agent whilst unregistered - the Applicant had a business relationship with migration agent Mr Yongky Tan - issue is the nature of Applicant's role in this relationship - decision under review set aside
LEGISLATION
Migration Act 1958, sections 276(1), 280(1), 290(1), 309(1)
CASE LAW
Prasad v Migration Agents Registration Authority [2002] AATA 423
Do Kyeong An v Migration Agents Registration Board (1997) 48 ALD 466
Lilienthal v Migration Agents Registration Authority [2002] FCA 93
19 November 2003 |
Ms N Bell, Member |
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1. This is an application by Mr Suhanda Lesmana ("the Applicant") for review of a decision of the Migration Agents Registration Authority ("the Respondent") dated 9 September 2002 to refuse the Applicant's application for registration as a migration agent (T2). The application was refused on the basis that the Respondent considered the Applicant to not be a fit and proper person to give migration assistance or a person of integrity pursuant to section 309(1) of the Migration Act 1958 ("the Act"). The Respondent considered that the Applicant had been practising as a migration agent whilst unregistered, in breach of section 280(1) of the Act.
2. At the hearing before the Tribunal the Applicant was represented by Mr Michael Barko of Counsel and the Respondent was represented by Mr Murray Allatt from the Australian Government Solicitors' office. The Applicant gave oral evidence to the Tribunal and the Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975, the Applicant's Statement of Facts and Contentions with attachments A to E and the Respondent's Statement of Facts and Contentions.
BACKGROUND
3. The Applicant applied for registration as a migration agent on 21 January 2002. He is an Indonesian citizen with a permanent resident visa. He first arrived in Australia in 1996. The Applicant is a student agent with his own business, Network Educare. His business operates on the basis of agreements with tertiary institutions whereby he assists overseas students with choices of subjects and enrolment in tertiary education institutions, for which he receives a referral fee from the institution.
4. In 1999 the Applicant met Mr Yongky Tan, a migration agent and developed an arrangement with him whereby he would refer client students who wished to obtain student visas to Mr Tan and would share in the profits of work done by Mr Tan in obtaining the visas.
5. It is the nature of this relationship and the part played by the Applicant that gave rise to the decision under review.
6. The issue for the Tribunal to determine is whether the role played by the Applicant in this relationship amounted to giving migration assistance within the meaning of the Act and whether the Applicant is a fit and proper person to give immigration assistance and whether he is a person of integrity.
LEGISLATION
7. The provisions of the Act relevant to this application are sections 276(1), 280(1), 290(1) and 309(1) which provide as follows:-
"276 Immigration assistance
(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c) representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
(3) Despite subsections (1) and (2), a person does not give immigration assistance if he or she merely:
(a) does clerical work to prepare (or help prepare) an application or other document; or
(b) provides translation or interpretation services to help prepare an application or other document; or
(c) advises another person that the other person must apply for a visa; or
(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
...
280 Restrictions on giving of immigration assistance
(1) Subject to this section, a person who is not a registered agent must not give immigration assistance.
Penalty: 50 penalty units.
(1A) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
...
(3) This section does not prohibit a lawyer from giving immigration legal assistance.
(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.
(5) This section does not prohibit an individual from giving immigration assistance if the assistance is:
(a) not given for a fee or other reward; and
(b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organisation; and
(c) not given in the course of, or in association with, the conduct of a profession or business.
(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
(a) a member of a diplomatic mission; or
(b) a member of a consular post; or
(c) a member of an office of an international organisation...
...
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 the 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
(c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
309 Persons may make submissions
(1) If the Migration Agents Registration Authority is considering refusing a registration application, the Board must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application."
APPLICANT'S EVIDENCE
8. The Applicant made two statements to the Department of Immigration and Multicultural Affairs ("the Department") throughout the course of the Department's investigation into the activities of one of its officers. In a statement dated 17 January 2001 (T4, f16), the Applicant stated:
"On occasions I am asked by students to assist I help them obtain a student visa. On some occasions, I obtain all the necessary documentation and the required payment and I pass this on to a registered migration agent, Yongky Tan of Ausvisa in Maroubra. On other occasions, I ask the student to attend the Department of Immigration by himself or herself and arrange the required student visa himself or herself. Whether I engaged or not engaged Yongky's services depend on students request. If the student feel that he/she is capable of applying visa him/herself, thus I invite him or her to do it him/herself "
9. In a statement to the Department, dated 9 August 2001 (T10), the Applicant stated:
"6. As an education agent I make money through commissions from educational institutes to which I refer students. I have a number of contracts with various educational institutes, which means that when I sign up a student with those particular places they pay me a commission, the amount which varies between institutions.
7. I can say that when I dealt with students visa applications, I ensure that all appropriate material is collected. The application fee attached and the material sealed in an envelope, which I or the student him/herself dropped in the drop box at the Department of Immigration and Multicultural Affairs (DIMA) Rockdale office or I would refer the student to Yongky Tan if the student requested the assistance of a migration agent. I can say that with all the applications that I delivered to the DIMA in this way I would ensure that the application fee is in the form of a money order or credit card. When I have students that pay the application fee in cash I convert the cash into a money order, primarily at my local post office in Broadway, before submitting the application.
8. I recall that prior to June/July 2000 it was not mandatory for student application to be lodged in the drop box on these occasion I would attend Rockdale in company of the student and would lodge the application over the counter. On these occassions (sic) the application fee may have been paid in cash by the student him/herself or money order or by other form of transaction (such as by the student paying with his/her credit card) depending on the student.
9. Some student applications that I have dealt with may have special cases, such as the student may have had a bad attendance record at their educational institutions, I referred these cases to Mr Yongky Tan, a registered Migration Agent, of Ausvisa if requested by the student him/herself. I referred these cases to Yongky because he had told me that he could guarantee that the visa would be granted or otherwise there will be no charge. I did not know how Yongky would get the visa granted, but I believed him because he is a migration agent, and he had been successfully in having visas in the past granted. Most of the students that I referred to Yongky Tan had to pay an additional fee over and above the DIMA application fee, the tuition fees and the health fees. Part of this additional fee went to Yongky Tan for this service and I retain some myself. For the students who had to pay an additional fee, the additional fee varied from student to student depend on their circumstances, The students were required to pay additional money ranging from $200 upwards. Some student did not have to pay fee.
10. I am not aware of what Yongky Tan did with the applications that I gave to him. But I am aware that any application that I put through Yongky Tan had a turnaround time of about one-week. This was much shorter than the usual turnaround time of a student application that was put in the drop box at Rockdale which was about one to two months. I did not consided (sic) this suspicious, as I consider it reasonable that a migration agent could get a visa faster than some one who was not an agent. Just as a tax agent/accountant who would be able to obtain a tax refund faster than if someone lodged his tax return personally."
10. In addition, the Applicant was interviewed by Respondent officers on 27 June 2002. The record of interview (T18) was extracted by the Respondent in it's Statement of Facts and Contentions as follows (Exhibit R1, p.3):-
"MARA officer: Okay, so I walked into your room and I said I wanted a visitor visa. What do you then?
Lesmana: Well, just get the information.
MARA officer: What information?
Lesmana: The passport, just get the passport and show it to Yongky to see whether he can do it or not.
MARA officer: So you take my passport and give it to Yongky?
Lesmana: No, photocopy.
MARA officer: Photocopy, and you give that to Yongky. Does the client go on to then see Yongky?
Lesmana: Some of them, yes, some is not.
MARA officer: Okay. Yongky then presumably prepares an application for me?
Lesmana: Mm'hm.
MARA officer: What happens then?
Lesmana: Well, then I mean, if they agree then Yongky what do what this application.
MARA officer: Okay, Yongky has now done my application. What happens then?
Lesmana: He give it me, I give it to you. And then you give me the money, I give to Yongky. [ff107-108]
...
MARA officer: Just a little further bit of teasing out and clarification on this relationship with Yongky. So you've referred the client across to , or his details across to Yongky. Yongky says, "yes, I'm prepared to do that". You convey that advice back to the client, and the client says, "yes, I'm prepared to accept that".. Where and how does the formal engagement of the migration matter come about? How is the letter of appointment where the client signs and appoints Yongky as the agent, how does that come about?
Lesmana: Yongky never gives me anything.
MARA officer: So Yongky doesn't have any letter of appointment, so he takes these matters on and does matters. Okay, where does the invoicing and that come in? Does he invoice you?
Lesmana: No. [f110]
MARA officer: Now you say you just send the details to Yongky. He sends something back to you. You give it to the client?
Lesmana: Mm'hm.
MARA officer: Now, my assumption is that's the form for them to sign?
Lesmana: Um'hm.
MARA officer: Is that right?
Lesmana: Yes. Some of them [f111]
...
MARA officer: Okay. Now, you receive a commission from Yongky you mention before. What's the commission?
Lesmana: It depend.
MARA officer: Is that a percentage?
Lesmana: Usually I split it 50/50.
MARA officer: 50/50. Okay, so he gives you 50% just for referral?
Lesmana: Yeah, 50% of the profit. That's not including his expense. [f112]
...
MARA officer: The money is then paid to you, once you hand back the passport and the visa to the client
Lesmana: Mm'hm.
MARA officer: How much, do you then, what take your commission out and then send to rest to Yongky do you? Or do you send all the money to Yongky with an invoice for your percentage?
Lesmana: No, no, there is no invoice or nothing.
MARA officer: Okay, correct me if I'm wrong, you take your commission, you put that in your pocket, you send the rest of the money to Yongky?
Lesmana: It depend again on case by case. Some of them, I mean, like Lucida, I think he paid directly to Yongky - not with me.
MARA officer: Mm'hm. But you say the normal process is the passport and documents come back through you and they don't pay until they got the result. So that means the normal situation is that they pay to you at the end of the process. So that situation, they pay you X amount, you take your commission out of that, and you send the rest of the cash across to Yongky. Is that correct?
Lesmana: Yeah sometimes [ff113-114]
...
MARA officer: No, we're talking about new student enrolments. You've secured their letter of enrolment, letter of offer, and the student then says to you, "okay, now I've got to apply for my visa, what do I do?"
Lesmana: Yeah.
MARA officer: Now you can't turn them away at that stage, because they're already committed to you. So what happens to those ones? Where do they get their immigration advice?
Lesmana: Well, I told you already in the DIMIA form you can check in DIMIA they have one form like that. It's very easy, very clear. They have everything in there you need. So I just hand out everything. They already, they said that, I mean, you have to have 209 days and then you have to have attendance of 80% , you have to have a financial of 4,000. [f128]
...
MARA officer: Sydney Institute of Business and Technology. For the tape, and I'll just read it, what Mr Lesmana is, I believe, referring to is the letter of offer to a client, a Ms Morissa Sebana, it's a letter of offer to a diploma in Business Administration, and it finishes off by saying, last two paragraphs:
"our representative office will arrange for a receipt and the confirmation of enrolment to be issued and will assist you to apply for a student visa".
New paragraph, and final paragraph:
"If you require any assistance with a visa application, or further information regarding this offer, please do not hesitate to contact the Institute directly or Network Educare, Education Service",
which is Mr Lesmana's company. Then I guess that's what you're referring to is the ...
Lesmana: That's what I'm saying I mean this is a grey area for the student agent."
11. In oral evidence to the Tribunal the Applicant said that in early 2001 he was approached by officers of the Department and was interviewed and gave statements. He said that at all times he was very cooperative with the Department. He said that he did not engage a lawyer throughout this process and invited Department officers to his business premises in order to conduct a search. He said that officers came to his house with a warrant early in the morning. The Applicant said that he did not seek legal advice because he considered that he had done nothing wrong.
12. He said that he has never been charged with any criminal offence and is not aware of any student visa applications, with which he was in any way associated, being rejected or of any information supplied in those applications being false. The Applicant said that he does not know what has happened to Mr Tan and that he last saw him in January 2001 to clarify the circumstances of the investigation.
13. The Applicant said that he applied to become a migration agent because after the investigation relating to Mr Tan he found it very difficult to trust a migration agent again. He said that he is unable to supervise what they are doing and that it is best for him to conduct the work himself.
14. In cross-examination the Applicant was referred to a letter from him to the Respondent in which he says (T7):
"I have lodged some visa applications through a migration agent previously as I was not a register (sic) migration agent".
15. He said that by that he meant he submitted applications to Mr Tan, some completed and some not. He said that he did not know how incomplete applications were made complete by Mr Tan but assumed that they had later been completed by the student.
16. The Applicant said that he would translate the questions in the form into the Indonesian language for students. He said that he would simply make the questions clear to them and did not give them advice as to what to answer.
17. The Applicant said that he had an arrangement for a 50/50 split of any profits from visa applications he referred to Mr Tan and said that he received cash and there were no invoices or receipts. He said he did not record the transaction in his company records and did not record it for tax purposes.
18. The Applicant said that after he ceased his arrangement with Mr Tan he would simply translate Department documents for students and leave it at that. He said that if a student wanted migration help he would tell them to attend a migration agent.
19. The Applicant said that the 2002 annual turnover of his student agent business was approximately $200,000 and that 2002 was his best year. He said that any help that he gave students was free of charge. He said that if he dropped documents into the Rockdale Department Office the student would give him a money order enclosed with the documents in the envelope. He said that he purchased a money order in some cases with Mr Tan. He said that he would sometimes take his split of the profits out of cash given to him by students.
20. The Applicant referred to a letter which appears at page 5 of the Respondent's Statement of Facts and Contentions (quoted by the MARA officer in the extract of interview reproduced in paragraph 10 of these reasons) and noted that it was prepared by Macquarie University and not by him.
21. The Applicant said that it was Mr Tan who approached him, rather than the other way around, and that before his arrangement with Mr Tan he would simply give Department forms to students, translate them and sometimes drop completed forms into the Department's drop box.
22. The Applicant said that the money he got from his arrangement with Mr Tan was very small in comparison to his other business. He said that Mr Tan had told him that he could organise visas. The Applicant dealt with him because he was curious and found that he was successful with many visas. He said that he asked Mr Tan whether what he does is lawful and was reassured that it was. Finally he said that he had had 10 to 20 clients with Mr Tan.
23. Attachments A, B and C to the Applicant's Statement of Facts and Contentions (Exhibit A1) are documents relevant to student visa applications as supplied by the Department. It was the Applicant's evidence that he would direct students to these documents or provide copies of the documents to them.
CONSIDERATION
24. The Tribunal accepts the Applicant's evidence as follows:
§ The Applicant runs a student agent business, earning commissions from tertiary institutions and had a turnover of $200,000 in 2002;
§ When student clients of his business needed to apply for student visas, the Applicant would direct the student to the relevant Department forms, translate the forms and sometimes deposit the forms at the Department office. For this he charged no fee;
§ The Applicant was approached by Mr Tan, a registered migration agent, and entered into an arrangement with him whereby some student clients of the Applicant would be referred to Mr Tan by the Applicant for assistance with applications for student visas and in return the Applicant would receive 50% of Mr Tan's profit. The Applicant referred some 10 to 20 student clients to Mr Tan under this arrangement;
§ In some cases where the Applicant referred students to Mr Tan he would collect the completed forms signed by the student and give them to Mr Tan. Some of the forms were not completed;
§ In some cases the Applicant would collect the fees required by Mr Tan from the student and deduct his share of the profit from the moneys before giving the remainder to Mr Tan;
§ The Applicant kept no record of the referrals made by him to Mr Tan, nor of the payments received by him. Nor were there any invoices issued by him nor any declaration made to the Australian Taxation Office of the income derived from his arrangement with Mr Tan.
25. In Prasad v Migration Agents Registration Authority [2002] AATA 423 the Tribunal discussed the meaning of the words "fit and proper person" and "person of integrity" and said:
"40. In its previous decision in this matter, the Tribunal also referred to the meaning of the phrases "person of integrity" and "fit and proper person". The Tribunal cited the discussion by Deputy President Purvis in Re SRH and Controller-General of Customs (1995) 21 AAR 401, at 405, when he adopted the ordinary meaning of the word "integrity" as indicating "soundness of moral principle and character; uprightness; honesty". He then went on to discuss the meaning of "fit and proper" in the context of the Income Tax Assessment Act, which he said encompasses integrity, honesty, diligence and professionalism; these are the qualities relevant to integrity. The Tribunal then cited Deputy President Forgie in Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534, and her discussion of the need for a migration agent giving competent migration assistance to have a knowledge of migration procedure. While knowledge may not reflect on a person's integrity, it may mean that a person is not otherwise a fit and proper person to give immigration assistance. The Tribunal was also referred by Mr Reilly to the decision in Lilienthal (supra). In that case, Deputy President Purvis repeated his discussion of the word "integrity" in Re SRH (supra). He also cited the decision in Hughes and Vale Pty Ltd. v State of NSW (No 2) (1955) 93 CLR 127 at 156, where the High Court discussed the meaning of the "fit" in a similar context, which it said involves: "Three things, honesty knowledge and ability". The Deputy President emphasised that the concept of fitness and propriety is not however, to be narrowly construed or confined but is to be interpreted in the context of the activities in which the person is, or will be engaged and the ends to be served by these activities: Australian Broadcasting Tribunal v Bond (1990 170 CLR 321 at 380."
26. The Respondent submitted that the Applicant has shown a lack of fitness and propriety through having breached section 276(1)(a) and (b) of the Act in that he prepared or helped to prepare visa applications and advised in relation to those applications.
27. The Tribunal was referred by the Respondent to Do Kyeong An v Migration Agents Registration Board (1997) 48 ALD 466 in which Matthews J, President found that a registered migration agent had been brought in by the applicant as a "front" in order to allow the applicant to appear to comply with the requirements of the Act. The applicant in that case was in fact continuing to conduct the business of a migration agent while holding out that the registered agent was performing the work. In the course of the hearing of this application, Mr Allatt, for the Respondent, conceded that the Applicant had not attempted to use Mr Tan as a "front" in order to enable the Applicant to appear to comply with the provisions of the Act.
28. In Lilienthal v Migration Agents Registration Authority [2002] FCA 93 the Federal Court, in concluding that the applicant had purported to use his knowledge of migration procedure to assist a client, said:
"34 Mr Lilienthal gave evidence to the Tribunal that his role in preparing Mr Zilka's visa application was simply to translate the English words on the visa application form into Hebrew, which Mr Zilka could more easily understand, and to translate Mr Zilka's oral responses from Hebrew into English. In other words, Mr Lilienthal presented himself in evidence as being purely a translator or interpreter. The Tribunal did not accept this. The Tribunal thought he was acting as a person who was purporting to use his knowledge of migration procedure in order to assist Mr Zilka.
35 It seems to me this conclusion was amply justified, having regard to the terms of the fee and service agreement. As I have said, it was dated the same day as the date of preparation of the visa application. It provided for a fee of $225 per hour to be paid by Mr Zilka to Mr Lilienthal, $1,000 being immediately payable. It would be extraordinary, to say the least, for a person to agree to pay fees at this rate for assistance in the preparation and lodging of a visa application, but then use the payee simply as an interpreter; particularly in a case where the payee represented himself as an expert in the law. "
29. I consider that the circumstances of the Applicant are distinguishable from those of the applicant in Lilienthal (supra). The Applicant in this case did not receive payment from his student clients for the assistance he provided without the involvement of Mr Tan and when he referred such clients to Mr Tan he performed only translating or referral services. For that he received not a fee for services but a referral fee calculated not on an hourly rate but as a percentage of the profit costs of Mr Tan.
30. Having accepted that the Applicant received no fee for the assistance he provided without the involvement of Mr Tan, and given the provisions of section 280 (5), the question remains whether the Applicant, in referring students to Mr Tan, provided migration assistance for a fee.
31. I note again the provisions of section 276 (3) to the effect that clerical work, translation or interpreting services, advice that a visa must be applied for or provision of information prepared by a third person without substantial comment or explanation does not amount to immigration assistance within the meaning of the Act. There is no evidence before me to found a conclusion that the Applicant did any more for his student clients than pass on documents and information prepared by the Department, translate those documents and information and refer the completed or partially completed forms and the students to Mr Tan. I do not consider that this amounts to immigration assistance within the meaning of the Act.
32. The Applicant's failure to record or declare his earnings from his arrangement with Mr Tan remains somewhat troubling. The amount of earnings estimated by him was in the vicinity of $2,000 to $5,000. His evidence was, however, that he appreciates that a registered migration agent must keep full records of transactions and that he intends to maintain such records should he achieve registration. He was candid about his failure to declare these earnings.
33. Balanced against this failure is the full co-operation shown by the Applicant in the investigation conducted by the Department and in his interview with Respondent officers, both of which he took part in without the benefit of legal advice or representation. In addition, I accept the Applicant's evidence that he ceased his arrangement with Mr Tan when he realised Mr Tan was the subject of investigation and that he has not entered into any similar arrangement with another registered migration agent.
34. My impression of the Applicant is that he has been candid in his evidence to the Tribunal and that that evidence is consistent with his responses to his various interviewers.
35. On balance, I find that the Applicant is a person of integrity and a fit and proper person to be registered as a migration agent. I note that the Respondent conceded, in submissions, that the Applicant is otherwise qualified to be registered as a migration agent.
DECISION
36. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant should be registered as a migration agent.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: A. Krilis
Associate
Date of Hearing 9 September 2003
Date of Decision 19 November 2003
Counsel for the Applicant Mr Michael Barko
Solicitor for the Applicant Mr Jason Li
Solicitor for the Respondent Mr Murray Allatt
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