Hartnett and Migration Agents Registration Authority [2003] AATA 759 (7 August 2003)

Last Updated: 7 August 2003

DECISION AND REASONS FOR DECISION [2003] AATA 759

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/926

GENERAL ADMINISTRATIVE DIVISION	)
	Re	BEAU TIMOTHY HARTNETT

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal

Ms J Cowdroy, Member

Date 7 August 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...............................................

J Cowdroy

Member

CATCHWORDS

MIGRATION AGENTS - registration - whether decision to suspend registration was properly made - whether applicant failed to comply with the prescribed Code of Conduct

Migration Act 1958

Migration Regulations 1994

Migration Agents Regulations 1998

Attorney-General and Minister for Justice Queensland v Priddle [2002] QCA 297

REASONS FOR DECISION

7 August 2003

Ms J Cowdroy, Member

1. This is an application for review of a decision made by the respondent on 15 October 2002 to suspend the applicant's registration as a migration agent for the period of one year.

BACKGROUND TO THE HEARING

2. The respondent determined to suspend the applicant's registration for a period of one year as it was satisfied that he had not complied with the Code of Conduct prescribed under section 314 of the Migration Act 1958 ("the Act").

3. The respondent had received a letter from Alain David Ruthenberg on 1 October 2001 in which Mr Ruthenberg complained about the applicant's conduct in respect to migration matters. Following the receipt, and consideration, of further material, including a response from the applicant in relation to the complainant's allegations, the respondent determined that:

(i) the applicant had failed to deal with Mr Ruthenberg competently, diligently and without any conflict of interest that would effect the legitimate interest of Mr Ruthenberg in contravention of clause 2.1(b) of the Code of Conduct;

(ii) the applicant failed to have due regard to Mr Ruthenberg's dependence on his knowledge and experience in contravention of clause 2.4 of the Code of Conduct;

(iii) the applicant failed to act in a timely manner after Mr Ruthenberg provided all the necessary information and documentation in time for statutory deadlines in contravention of clause 2.18 of the Code of Conduct; and

(iv) the applicant contravened clause 6.2 of the Code of Conduct in relation to the keeping of documents securely in connection with the provision of services to Mr Ruthenberg.

THE HEARING

4. The matter was heard on 7 and 8 July 2003 in Brisbane. Mr J Douglas, QC represented the applicant, instructed by Mr C Wilson. Mr P Hardman represented the respondent.

5. Before the Tribunal were the "T" Documents and Supplementary "T" Documents (Exhibits A1 and A2), which were admitted into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, as well as the following:

Exhibit A3 Statement of Melissa Ann Buttigieg-Pocock dated 30 May 2003

Exhibit A4 Affidavit of Beau Timothy John Hartnett sworn 29 October 2002

Exhibit A5 Guidelines in relation to the Migration Act 1958

Exhibit A6 Facsimile to Alain Ruthenberg from Hynes Hartnett dated 15 August 2000

Exhibit A7 Statement of Beau Timothy John Hartnett dated 30 May 2003

Exhibit A8 Diary note dated 9 August 2000

Exhibit A9 Diary note date 14 August (2000)

Exhibit R10 Statement of Alain Daniel Ruthenberg dated 18 February 2003

Exhibit R11 File note of Alain Ruthenberg - RUT00157

Exhibit A12 Statement of HJ Talbot dated 18 August 2000

Exhibit A13 Transcript of Migration Review Tribunal hearing on 16 July 2001

Exhibit A14 File note - "MB15" dated 28 June 2000

Exhibit A15 Notice of Intention to Cancel under section 116 of the Act

Exhibit R16 Facsimile sent to Alain Ruthenberg regarding Notice of Intention to Cancel and Activity Report

THE LEGISLATION

6. Section 314(1) of the Act provides that the Regulations (that is, the Migration Agents Regulations 1998 (referred to hereafter as "the Regulations")) may prescribe a Code of Conduct for migration agents. That Code of Conduct is set out in Schedule 2 of the Regulations and relevantly provides:

"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.

...

2.18 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 mot circumstances an application under the Migration Act or Migration Regulations must be submitted before a person's visa ceases to be in effect. ..."

EVIDENCE

7. At the hearing, the respondent did not rely on the fourth area of conduct referred to in paragraph 3(iv) above and the hearing proceeded to determine three areas of conduct, hereinafter described as the first conduct, the second conduct and the third conduct. Those descriptions correlate to the conduct described in paragraph 3(i) to (iii) respectively.

8. The applicant and the respondent provided chronologies of events from which the Tribunal distilled various factual matters, which are not in dispute.

9. Mr Beau Timothy John Hartnett was admitted as a solicitor of the Supreme Court of Queensland on 17 February 1992. His initial registration as a migrant agent occurred on 14 October 1994. In August 1998, he commenced practice with Robert Hynes, initially under the name of Hynes and Associates and later, under the name of Hynes Hartnett. The partnership was dissolved on 3 September 2001 and thereafter the applicant established the firm of Hartnett Lawyers at Surfers Paradise.

10. Mr Alain Daniel Ruthenberg was born in Brazil on 23 May 1969. Prior to his arrival in Australia in May 1995, he had worked in the management of a family owned company in Brazil. He held a student visa and undertook a course in the English language at Bond University. He subsequently enrolled at Bond University in a Bachelor of Commerce, which he completed. He then commenced a Master of Business Administration (MBA) and Master of Accounting at Bond University.

11. On 12 November 1998 he first retained the services of the applicant in connection with an immigration matter. In about March 1999, Mr Ruthenberg commenced working with Saxby Bridge (hereinafter referred to as "Saxby"). On 30 April 1999, the applicant confirmed in writing Mr Ruthenberg's instructions to act on his behalf in an application for a temporary business entry long stay (Class UC) 457 visa (hereinafter referred to as "457 visa"). By letter of 1 June 1999, the Department of Immigration and Multicultural Affairs approved the application, on the basis that Saxby was approved as Mr Ruthenberg's business sponsor. By letter dated 2 June 1999, the applicant advised Mr Ruthenberg that his 457 visa application had been approved.

12. Ms Melissa Ann Buttigieg-Pocock gave evidence. The witness is a registered migrant agent and is an admitted solicitor of the Supreme Court of Queensland. From 13 August 1999 to 3 September 2001, she was employed at the partnership of Hynes Hartnett as a law clerk and as an indentured articled clerk to Mr Robert Hynes. When the partnership dissolved, she continued in the employ of Hynes Lawyers until 5 February 2003.

13. Between approximately January 2000 and September 2001, she worked primarily in the area of migration law under the supervision of the applicant.

14. As at February 2000, she was aware that Mr Ruthenberg held a 457 visa, that he had established a business as an education agent and that he wanted to apply for migration to Australia under the Skilled Independent Visa Subclass 136. She had had discussions with Mr Ruthenberg about leaving his sponsored employment at Saxby, as well as discussions either on her own or in the presence of the applicant relating to the option of transferring Mr Ruthenberg's sponsorship to another approved employer, or enrolling at university to obtain qualifications to enable him to apply for permanent residence.

15. On 17 February 2000, she met Mr Ruthenberg in the office and gave him a letter dated 17 February 2000, which Mr Ruthenberg had asked for in connection with his efforts to find another employer who would take over his sponsorship.

16. On 18 February 2000, she attended a meeting with Mr Ruthenberg together with the applicant. Mr Ruthenberg expressed his dissatisfaction with his employment at Saxby and indicated that he wanted to leave. Mr Ruthenberg was advised at that meeting that if he left sponsored employment he had to find a new sponsor. Discussion also ensued about the possibility of applying for permanent residence on the basis of work experience. After discussing the various options, Mr Ruthenberg indicated he would endeavour to find a new sponsor in May 2000 if he was still dissatisfied with Saxby or alternatively he might return to University studies.

17. On 7 March 2000, Ms Buttigieg-Pocock spoke to Mr Ruthenberg by telephone in relation to the possibility of him applying for a Student (Temporary) Visa Subclass 560, (hereinafter described as a "temporary student visa"), which would allow him to give up work with Saxby and resume studies.

18. On Monday, 13 March 2000, she received a telephone call from Mr Ruthenberg indicating that he had left Saxby and had not worked since 9 March 2000. Saxby had indicated that it wanted a formal resignation letter. Discussion then ensued about making an application for a student visa and, after discussion with the applicant, Mr Ruthenberg was advised to defer his resignation as long as possible in order to give him time either to find a new sponsor or to apply for a temporary student visa.

19. Mr Ruthenberg was subsequently advised that, on the basis that Saxby had notified DIMA of his resignation, it was desirable to lodge an application for a student visa within 28 days of his resignation. A notice of resignation from Saxby dated 31 March 2000 was received from Mr Ruthenberg on 5 April 2000.

20. On 26 April 2000, Mr Ruthenberg expressed his concern to her about the status of his application for student visa, as he was worried that Saxby might report to DIMA that he had left that employment and that 28 days had elapsed since his resignation.

21. The following day the applicant wrote to Mr Ruthenberg confirming instructions to apply for a temporary student visa and confirming to him that he faced difficulty in applying for such a visa whilst he was in the country. On 28 April 2000, an application for a student visa was lodged on shore on the basis of exceptional circumstances. At that time Ms Buttigieg-Pocock was not aware that Mr Ruthenberg held an EEC passport and she did not become aware of that fact until late June or early July 2000 when DIMA indicated that it was not satisfied that exceptional circumstances existed justifying lodgment of the application on-shore.

22. On 28 July 2000, DIMA issued a notice of intention to cancel (hereinafter referred to as "the NOIC") Mr Ruthenberg's 457 visa on the basis that he had failed to comply with visa condition 8107, which related to a change of employment without notification. In the fist week of August 2000, she and the applicant advised Mr Ruthenberg that he should lodge an application for a student visa initially in Switzerland and later in Paris, on the basis that he held an EEC passport.

23. On 14 August 2000, Mr Ruthenberg instructed Haynes Hartnett to act on its behalf in relation to the NOIC. The NOIC required a written response by 11 August 2000. On 11 August 2000, the applicant requested orally from the case officer at the Business Centre in Brisbane an extension of time to respond to the NOIC. A further request was made on that day for confirmation of the extension to be provided in writing. This was confirmed by DIMA in a letter dated 18 August 2000.

24. Ms Buttigieg-Pocock wrote the first draft of the response to the NOIC on behalf of Mr Ruthenberg. The applicant made a number of changes to the draft. On 28 August 2000 she had a conversation with Mr Mirfassihi of DIMA in which she advised that the submission was being finalised and asked if it was acceptable for it to be forwarded by the next day, 29 August 2000, to which Mr Mirfassihi acquiesced. The file note which records the content of that conversation appears at MB13, as an attachment to her statement (Exhibit A3). The file note was prepared from the handwritten notes which were made whilst she was on the telephone. Shortly after that conversation, she typed up the file note from the information in her handwritten note.

25. Ms Buttigieg-Pocock acknowledged that she had no experience in migration law prior to January 2000. On the occasions when both she and the applicant attended on Mr Ruthenberg, they both took notes, with the applicant taking the primary advisory role. Generally, she assumed responsibility for producing a typewritten version of their notes. She said her notes became more detailed as she gained more experience.

26. She acknowledged that there is no reference to advice being provided to Mr Ruthenberg as to the risks involved in leaving his employment with Saxby in the file notes or in the written material provided to Mr Ruthenberg. Despite that omission, she recalled generally the content of the conversation and confirmed that the applicant gave such advice.

27. She did not recall when the NOIC was received, nor did she recall when she first became aware of its existence. She thought that on or about 28 July 2000 the applicant was on holidays. Despite the extension being granted to 25 August 2000, the submission was not forwarded on that date, nor, as far as she was aware, did anyone from the office contact DIMA on that day. She acknowledged that the facsimile number to which the submission was sent was incorrect, in that it was forwarded to the finance section.

28. Mr Beau Timothy John Hartnett, the applicant in these proceedings, produced a statement dated 30 May 2003, which was admitted into evidence as Exhibit A7. He first met Mr Ruthenberg on 12 November 1998 whilst he was still a partner at Hynes Hartnett. In mid March 1999, Mr Ruthenberg advised him that he had been offered employment at Saxby and in April 1999 he was further instructed that Saxby had agreed to apply for approval as a business sponsor in support of Mr Ruthenberg's application for the 457 visa.

29. He was instrumental in applying for a 457 visa for Mr Ruthenberg, which was supported by Saxby's sponsorship. He received a letter from DIMA, dated 1 June 1999, advising that the application had been approved and he notified Mr Ruthenberg of the approval by letter dated the same day, which Mr Ruthenberg collected from his office. He attached to the letter to the applicant, the letter from DIMA dated 1 June 1999.

30. On 25 January 2000, the applicant spoke to Mr Ruthenberg by telephone during which Mr Ruthenberg referred to his attendance at a meeting at Bond University relating to an agency relationship with the University for the recruitment of international students. Discussion occurred about the need for a registered business name in accordance with the University's requirements. The applicant was subsequently advised that Mr Ruthenberg had been appointed as an agent for recruiting foreign students and he was provided with a copy of the agency agreement and other documents which Mr Ruthenberg had received from the University. He also received an agreement for TAFE Queensland

31. On 9 February 2000, the applicant met with Mr Ruthenberg and was informed by him that he was unhappy at Saxby and he raised with the applicant the prospect of resigning from that employment. Other alternative courses of action were discussed, including resigning from Saxby, enrolling in University and applying for a student visa as well as the option of finding a new sponsor.

32. Mr Ruthenberg also raised with the applicant the prospect of his firm acting in the role of sponsor. However the applicant indicated he was not receptive to that idea. Mr Ruthenberg also proposed an arrangement that he use an office in the applicant's premises, bring his own computer, in return for which he would refer any international students to the applicant's firm for migration work. The applicant indicated that in order to consider the proposal he would need to see a business plan. Mr Ruthenberg indicated to the applicant that wanted to register a business name for his student recruitment business and possible names, including Australia Go, were discussed.

33. During discussions he may have advised Mr Ruthenberg words to the effect that "the Immigration Department doesn't need to know everything".. However, this would have been said in the context of his advice to him that he should not leave sponsored employment until he had found another sponsor or was granted a student visa, at which time it would be appropriate for him to resign and advise DIMA of the resignation. He advised Mr Ruthenberg that having established a business of his own would not affect his 457 visa, though he could not undertake any work in the business unless he stayed in sponsored employment or held a temporary student visa with work rights.

34. On or about 10 February 2000, Mr Ruthenberg delivered a business plan which was subsequently discussed with Mr Hynes. After that discussion, the applicant informed Mr Ruthenberg that it was not a plan in which he and Mr Hynes were interested in participating. At a meeting on 18 February 2000, Mr Ruthenberg informed the applicant and Ms Buttigieg-Pocock that he would remain at Saxby until May 2000 when he would look for alternative employment with another sponsor if he was still unhappy.

35. On about 6 March 2000, the applicant received a memorandum from Ms Buttigieg-Pocock advising that Mr Ruthenberg had sought advice as to limitations on temporary student visa holders incorporating companies in Australia. He subsequently advised Mr Ruthenberg that he could buy a company, but he could not work for the company unless he remained in sponsored employment or he held a temporary student visa with permission to work.

36. Subsequently, the applicant's firm received instructions to incorporate a company for him under the name of Australia Go Pty Ltd. This occurred on 7 April 2000. On 28 April 2000, the applicant caused an application by Mr Ruthenberg for a temporary student visa to be lodged at DIMA.

37. On 14 June 2000, in a telephone conversation with Mr Ruthenberg, the applicant was told that he was assisting two students from Brazil in their enrolment at a course at the Academy of Safe Therapies (hereinafter called "the Academy"). The students had to see an officer from DIMA. This was the first time that he became aware that Mr Ruthenberg was intending to personally assist international students and he advised him that he should not accompany the students to the interview with the officer from DIMA as he was at risk of cancellation of his 457 visa, on the basis he was working after leaving sponsored employment. Although he had applied for a student visa, this had not been granted. This advice, in general terms, was repeated in another conversation on 15 June 2000 with Mr Ruthenberg. In substance, prior to 15 August 2000, he had no knowledge about the company's operations or the role which Mr Ruthenberg performed.

38. On 14 August 2000 he took instructions from Mr Ruthenberg in relation to the NOIC dated 28 July 2000. Mr Ruthenberg told him that he personally did not undertake any work. He was given a copy of an agency agreement between Mr Joris Francis Verbeelen, a friend of Mr Ruthenberg's, and Australia Go. Mr Ruthenberg also instructed him that his girlfriend, Ms Mendoza, was responsible for company administration.

39. He advised Mr Ruthenberg of the importance of obtaining a letter from the Academy explaining the background to the incident that led to the issue of the NOIC. He drafted the letter for Mr Ruthenberg, which Mr Ruthenberg arranged to be placed on the Academy's letterhead and signed by an employee of the college, Mr HJ Talbot. He received a signed copy on 21 August 2000, by facsimile. He did not know whether Mr Talbot amended the letter in any way before affixing his signature.

40. Mr Hartnett acknowledged that he had seen a Certificate of Representation from Bond University appointing Mr Ruthenberg and he was aware that Mr Ruthenberg was intending to hold discussions with Griffiths University. He also knew that Mr Ruthenberg wanted to establish relationships with education providers and that he had been involved in discussions with a view to setting up a network overseas to undertake student recruitment for educational institutions in Australia.

41. The applicant said he provided a variety of advices to Mr Ruthenberg. However, he was unaware whether Mr Ruthenberg always acted on the advice he was given. When Mr Ruthenberg first consulted him about the sponsorship process, he advised him that there needed to be a minimum salary of $33,500 paid by the sponsor. From recollection, Mr Ruthenberg told him that he was to be paid $60,000, and that was his understanding at the time he made the application for the 457 visa. He only discovered that Mr Ruthenberg was being paid on a commission basis in February 2000, when Mr Ruthenberg indicated that he was thinking of leaving Saxby.

42. Contrary to Mr Ruthenberg's assertion, he did not believe that he was involved in the drafting of the letter of resignation from Saxby, although he may well have told Mr Ruthenberg to date the letter at the end of the month (31 March). Nor did he recall the conversation referred to in paragraph 30 of Mr Ruthenberg's statement in which he states that he gave the applicant a copy of his resignation and asked him whether he needed to provide a copy to the department, at which time the applicant is alleged to have said "Don't worry you don't need to tell them everything". However, as he believed that it was the employer's obligation to notify DIMA, he might have said words to that effect. He added that he did not see such notification as his responsibility.

43. In regards to knowledge that Mr Ruthenberg held a French passport, he acquired this towards the end of June 2000. He disputed Mr Ruthenberg's contention that he was informed of its existence at some earlier time.

44. He acknowledged that he met Mr Ruthenberg at a café in May 2000 at which time Mr Ruthenberg brought with him a file in regard to students he had recruited from Brazil to study in Australia. He did not recall the number of students involved. He believed that Australia Go had representatives overseas who had carried out the student recruitment.

45. The submissions that he made to DIMA in relation to the NOIC were based on Mr Ruthenberg's instructions to him. He denied that when he drafted the letter and submitted it to DIMA, he knew it contained information which was untrue, inaccurate or misleading. In particular, statements that Mr Ruthenberg was not employed at all, and that he does not work for the company (Australia Go) was not, to his knowledge at that time untrue, inaccurate or misleading.

46. When pressed, he acknowledged that a letter from the Academy was expected to be regarded with considerable weight by DIMA, given that the intention to cancel was made primarily on the basis of DIMA's understanding that Mr Ruthenberg was working with Australia Go.

47. He could not recall sending a letter to Mr Ruthenberg dated 10 February 2000 in which he acknowledged that Mr Ruthenberg was an agent of Bond University and GCIT and in which mention is made of an initial recruitment target of thirty international students per semester with an overall goal of 100 students per semester (T98/338). However, he conceded that when he incorporated Australia Go on instructions from Mr Ruthenberg, he was already aware that Mr Ruthenberg had entered into arrangements and agency agreements and was planning to enter into other agreements.

48. At T95/332, a file note, dated 9 February 2000, refers to Mr Ruthenberg making arrangements for the owners of Seven English.Espanol to come to Australia in March and the note records the applicant's suggestion that Mr Ruthenberg arrange for the owners to arrive in Australia during the second week in March as he would still be away during the first week. Mr Hartnett was aware that he met with the owners and he was aware that commission was to be paid.

49. When he was given the bundle of Australia Go agency agreements on 14 August 2000) (BJH11), he first became aware that Mr Ruthenberg was the managing director of Australia Go. He did not recall reading a file note dated 6 April 2000 which refers to Mr Ruthenberg waiting on an ACN number before he can begin operations.

50. He conceded that paragraph 29 of his statement, in relation to advice given to Mr Ruthenberg by telephone, does not mention any advice being given about the possibility of visa cancellation.

51. He advised Mr Ruthenberg it was better to wait until a student visa was granted before becoming involved in meetings with DIMA officers and that he had told him on many occasions not to work. He was concerned when Mr Ruthenberg told him that he was going to enrol two students as such an activity could be construed as work. He consequently advised Mr Ruthenberg not to attend and he repeated this advice on 15 June 2000.

52. He could offer no explanation as to why a file note was not made of the advice he gave to Mr Ruthenberg. He suggested that it might have been recorded on a miscellaneous file. He said that once Mr Ruthenberg left the employment of Saxby, he reiterated his advice and told him of the options available on many occasions.

53. He recalled that he received a couple of referrals from Mr Ruthenberg for immigration work. When asked if Australia Go students were referred to his firm, the applicant said there was one female student who was a friend of Mr Ruthenberg, who was endeavouring to enrol in a course at the Academy. Mr Ruthenberg referred some students to his firm, but these were in connection with applications for permanent residence from students who had completed their studies. He had no idea whether any of them had any involvement with Australia Go.

54. With regard to the term "work" in the letter written on behalf of the Academy, he stated he had provided a legal opinion to the effect that Mr Ruthenberg was not working, within the meaning of that term in the Migration Regulations 1994 ("the Migration Regulations"). That legal opinion was provided on the basis of his knowledge and his instructions from Mr Ruthenberg. Under the Migration Regulations, "work" is defined (in reg 1.03) as work activity normally undertaken for fee or reward. He understood that Mr Ruthenberg would be required to sign various documents in his capacity of director. However, he did not think that he received a wage or a consultancy fee.

55. The applicant was questioned about a file note which he made on 28 June 2000, which is marked Exhibit A14. In that document, reference is made to "20 students" and "money starting to come in the next week or two". It also refers to "any arrangements to pay referral". There is also a reference to "$2997.32 finalise by Friday".. Notwithstanding his note that money was started to come into the business and the mention of twenty students, this did not alter his view that Mr Ruthenberg was not undertaking paid work. He pointed out that Mr Ruthenberg always spoke in positive terms about Australia Go, the operations of which were not really of any consequence to him. It was his understanding that Mr Ruthenberg had significant funds at his disposal.

56. He acknowledged that the letter he drafted on behalf of the Academy (Exhibit A12), which contains a comment that Mr Ruthenberg is not employed at all, is inconsistent with comments contained in the letter he wrote to DIMA on 29 August 2000 in relation to Mr Ruthenberg's work:

"Mr Ruthenberg is making a positive contribution to the Australian economy in respect of the export of education services to international students which has flow on benefits to the Australian universities and results in net job creation both now and in the future."

57. It was pointed out to the applicant that the letter dated 28 April 2000 to DIMA, making application for a temporary student visa, was written after the incorporation of Australia Go. Consequently, the comment that Mr Ruthenberg intends to establish a business upon completion of his degree (BTH8) was not truthful in that a business had already been established. The applicant responded that although the business had been incorporated, at the time he wrote the letter, it functioned only in embryonic form. He denied the respondent's contention that he did not want DIMA to be aware that Australia Go was already established.

58. The contents of the letter sent to DIMA were consistent with his instructions from his client. Further, he said he was not aware that Mr Ruthenberg had entered into agency agreements when he wrote the letter. He pointed out that his assistant prepared the letter based on his written notes and that he signed it.

59. In relation to the NOIC, he advised Mr Ruthenberg of its receipt on 9 August 2000 and he took instructions on 16 August 2000 . He did not know the date when the NOIC was received. He disputed that there was evidence of delay in dealing with the matter. He indicated that he was confident that he would be able to extend the time for reply.

60. Mr Alain Ruthenberg, produced a written statement which was admitted into evidence as R10. Both in that statement and during his oral evidence before the Tribunal, he denied that the applicant or anyone in the applicant's firm had advised him not to work. Between the time of incorporation of Australia Go and the NOIC he had performed a little work, helping students enrol and advising them what documents they required. He spent one to two hours per day "that was work, but not work". He had regularly advised the applicant of the nature of his business activities and the applicant knew that he was involved in establishing a network of agents.

61. He sought advice from the applicant about establishing a business and he instructed him to incorporate a company so that the business could commence operations. He also needed to be able to give an ACN number to those with whom he had dealings. The applicant had knowledge of these matters.

62. He gave the applicant copies of a number of agency agreements, including agreements from Bond University and Gold Coast TAFE. He conceded that the applicant did not advise him how to run the business, nor did he draft the various agreements he entered into. The recruitment agreements were not solely confined to overseas agents.

63. In relation to the draft of the letter written on behalf of the Academy, he read it the day before he left for overseas. He said he was under considerable stress at that time and that part of that stress included the possibility of not being able to stay in Australia. He said he did not read it thoroughly. He did not query with the applicant the sentence that stated that he did not work for Australia Go.

64. At the time the letter was drafted, the applicant was aware he was receiving commission. In between 14 June 2000 and the date of cancellation of his business visa, he received $6673.20 in commissions from various Australian educational institutions.

65. Extracts of Mr Ruthenberg's evidence at a hearing of the Migration Review Tribunal on 16 July 2001 were put to him in which he is recorded as stating that he was not actively promoting his business. He suggested that the proper interpretation of his evidence was that he was not working full time and that he was only helping students out. He conceded, however that this was not correct in the sense that his involvement with Australia Go encompassed more than merely helping students out.

66. Despite receiving the letter dated 2 June 1999, which states that the 457 visa was granted subject to a condition that he must not change his employer without permission in writing from DIMA, Mr Ruthenberg said he did not realise nor did anyone advise him that if he became a director of Australia Go, that that constituted a change of employer.

67. It was pointed out to Mr Ruthenberg that his evidence before the Migration Review Tribunal was that he was not told of the condition by the applicant, which is irreconcilable with a statement made by Ms Sharon Harris, another migration agent, that Mr Ruthenberg was aware that he was unable to change his employer or occupation without the permission in writing of the Department.

68. He acknowledged that he had a good understanding of oral and written English. Some of the changes in the draft documents prepared by Hartnett Lawyers were made at his instigation, an example being that the word "Columbian" was changed to "Brazilian".

69. His resignation to Saxby was, at the applicant's instigation, dated 31 March 2000. He did not know at the time why that date was selected but he had subsequently become aware that it related to some time frame of 28 days.

70. He gave up endeavouring to find a sponsor after 31 March 2000 and decided to apply for a temporary student visa. He said between February to April 2000, he had ten meetings with the applicant about the best options for him, that he trusted the applicant blindly and that he did not really understand all the advice he was given. He said that he did not understand some of the documents produced by the applicant after he had taken instructions from him. The file note recording instructions received on 16 August 2000 (Exhibit A7, BTJH16), forms the basis of the letter to DIMA settled by the applicant.

71. The applicant dictated the letter to DIMA in his presence, and the applicant re-worded what Mr Ruthenberg told him. He said they were not his words that were used in the letter. The applicant "put it in a different way to what I told him".

72. He disputed that it was in late June 2000 when the applicant was first informed that he had a French passport. Although he did not produce it to the applicant until July 2000, he had told him much earlier that he held one.

73. Whilst the applicant advised him of the options of obtaining a temporary student visa or to obtain another sponsor, he was not advised that he could make application on shore for a student visa on the basis that he held a French passport.

74. He agreed that he told the applicant that Saxby had offered a salary of $60,000. However, after working at Saxby, he told the applicant he was dissatisfied with that work as it only paid commission. He denied advising the applicant that his fiance; Ms Mendoza was responsible for the administration aspects of Australia Go, although she became a director after his resignation as director of Australia Go.

75. Mr Mohammad Mirfassihi, Brisbane Business Centre, DIMA was not available to give evidence due to his absence overseas. However, the respondent relied on statements made by him in the section 137 documents about arrangements made for submission of the firm's response to the NOIC. Essentially, Mr Mirfassihi acknowledged that he had a conversation with Ms Buttigieg-Pocock late in the afternoon of 28 August 2000 during which she indicated that the requested documents were being sent shortly. Although some documents were sent from the applicant's office, these were in relation to another file and unrelated to Mr Ruthenberg's matter. There is no mention of any conversation in which he approved an extension until 29 August 2000.

APPLICANT'S SUBMISSIONS

76. The applicant urged the Tribunal to have regard to the self-interested nature of Mr Ruthenberg's testimony. He was found to be an unreliable witness by the Migration Review Tribunal (hereinafter called "the MRT"), and it was submitted that Mr Ruthenberg's evidence before the Tribunal should be rejected for the same reason. The MRT also rejected Mr Ruthenberg's testimony that he was not aware of visa condition 8107 or his responsibilities.

77. The variations in Mr Ruthenberg's evidence provide striking examples of his willingness to depart from his own statements when it serves his purpose. Effectively, Mr Ruthenberg has demonstrated an apparent willingness to "say what it takes" in order for him to remain in Australia. The information about his activities is consistently reported in the letter drafted to the Academy, the instructions received by the applicant and the instructions he provided to Sharon Harris, who superseded the applicant as Mr Ruthenberg's migration agent.

THE FIRST CONDUCT

78. In relation to the first conduct, it was submitted that the Tribunal should rely on Ms Buttigieg-Pocock's testimony which was to the effect that the applicant had advised Mr Ruthenberg about visa condition 8107.

79. Further, the actions of Mr Ruthenberg after he left Saxby does not support a finding that the applicant failed to advise him that if he left Saxby his business visa could be cancelled. This is demonstrated in the fact that Mr Ruthenberg made numerous applications for alternate sponsored employment, including an approach to the applicant for sponsorship.

80. The seeking of advice by Mr Ruthenberg of the applicant as to whether to meet with DIMA officers and the advice given to him not to do so as it may be construed as "work" is only explicable if the applicant had previously advised Mr Ruthenberg that he was at risk of cancellation of his visa.

81. The evidence of Mr Ruthenberg at the MRT as to the nature and extent of his activities with Australia Go was acknowledged by him during his testimony not to be correct. The Tribunal could not be reasonably satisfied with Mr Ruthenberg's evidence that he had informed Mr Hartnett of the nature and extent of his involvement in Australia Go's operations once he had left sponsored employment.

82. The evidence does not support a finding that the applicant breached the Code of Conduct by omitting to advise Mr Ruthenberg that he was in breach of the visa condition either because Mr Ruthenberg was employed by Australia Go or was undertaking activities within Australia Go that constituted a change of occupation.

THE SECOND CONDUCT

83. The testimony of Ms Buttigieg-Pocock was that on 28 August 2000 she requested and obtained an oral extension of time until 29 August 2000 in which to respond to the NOIC. Her evidence is consistent with contemporaneous file notes and she has no motive to fabricate evidence on this aspect.

84. The file note of Mr Mirfassihi dated 31 August 2000 clearly was not made contemporaneously with his conversation with Ms Buttigieg-Pocock and he is mistaken. He was not called by the respondent consequently his recollection of events was unable to be tested in cross-examination. On that basis it should be given little weight.

85. The response was received in the office of DIMA on the extended date, notwithstanding that it was not received by Mr Mirfassihi on that day.

86. The NOIC dated 28 July 2000 was not received until 1 August 2000. The applicant advised Mr Ruthenberg of its receipt on 9 August 2000. If such is regarded as late notification, then it does not represent a failure to act in a timely manner given that the applicant had already sought and obtained an extension of time until 25 August 2000.

87. In summary, the applicant's handling of the response to the NOIC does not reflect incompetence or want of diligence.. The event was best described as an unfortunate communication breakdown, rather than misconduct. It is significant also that when the decision was reviewed taking into account the response, the same decision was reached.

THE THIRD CONDUCT

88. The applicant rejected the contention of the respondent that he submitted the letter to DIMA on 29 August 2000 in circumstances where he knew or suspected that the letter falsely asserted certain things.

89. The letter drafted by the applicant clearly reflected Mr Ruthenberg's instructions. When questioned about the contents of the letter, Mr Ruthenberg was evasive. While he purported not to understand it, this should be rejected and the view taken that he was prepared to offer it with knowledge that it was false to advance his hope of retaining his visa.

90. The applicant first became aware of the extent of Mr Ruthenberg's personal involvement locally with international students on 14 June 2000 when the applicant advised Mr Ruthenberg not to accompany students to an interview with DIMA at the Academy.

91. Mr Hartnett's testimony was that at that time he did not know the Academy had paid commissions to Australia Go.

92. The incorporation of a company with a single director/office holder does not, on its own, constitute "work" for the purposes of the Migration Regulations. The test to be applied is whether the activity performed by the individual normally attracts remuneration in Australia. That activities such as attendance at meetings are permitted activities is evident in the DIMA leaflet: "Frequently Asked Questions: Business Trips".

93. It was submitted that the activities undertaken by Mr Ruthenberg were not, to the applicant's knowledge, properly classified as "work", given that the business was in an embryonic phase, Mr Ruthenberg was not receiving income, the work of recruitment was sporadic and undertaken by overseas agents, and the company functions in Australia were largely undertaken by Ms Mendoza.

94. Notwithstanding that he held that opinion, as a matter of prudence, the applicant gave Mr Ruthenberg advice that attendance at a meeting at the Academy might be construed as work.

RESPONDENT'S SUBMISSIONS

95. The respondent conceded that Mr Ruthenberg admitted, both in his statement and in his oral evidence before the Tribunal, that the evidence he gave at the MRT was not correct. However, the matter is not entirely reliant on the credibility of Mr Ruthenberg. There is sufficient objective evidence to support the respondent's version of events. Further, the Tribunal should have concerns about the credibility of Mr Hartnett's testimony, submitting that he was evasive, and that, on some occasions, he gave responses bordering on the ridiculous.

THE FIRST CONDUCT

96. Of particular significance is the fact that there is a complete absence of any written evidence that advice was given by the applicant to Mr Ruthenberg that his involvement with Australia Go could be an activity that constituted a breach of condition 8107 and, most importantly, that as a result, Mr Ruthenberg`s 457 visa would be liable to cancellation. Mr Hartnett accepted that such advice was of importance, consequently it is significant that he is unable to point to any specific written evidence that this advice had been given. Further, Mr Ruthenberg was emphatic that such advice was not given.

97. The applicant was aware that Mr Ruthenberg resigned from his position with Saxby from 31 March 2000 at the latest. Australia Go was incorporated on 7 April 2000 and the applicant conceded that from at least February 2000 he was aware of Mr Ruthenberg's intentions to establish a business for the recruitment of foreign students for Australian educational institutions.

98. In February 2000, Mr Ruthenberg had approached the applicant with a business proposal which involved Mr Ruthenberg referring international students to the applicant to handle their migration requirements. From about 27 January 2000, the applicant had in his possession copies of agency agreements entered into between Mr Ruthenberg and Bond University and Queensland TAFE, which provided for payment of commission. Further Mr Ruthenberg had arranged with the owners of Seven English-Espanol school to meet in Australia and the applicant was aware of the meeting.

99. The applicant acknowledged that he met with Mr Ruthenberg in May 2000 during the course of which the applicant was shown copies of documents concerning students. He purported not to remember the number of students involved. It is evident that some referrals were received and yet Mr Hartnett was reluctant to place a number on the amount.

100. At BTJH10, the applicant offered to assist Mr Ruthenberg on 15 June 2000 "with any of his students".. It is open to the Tribunal to find that this offer was in relation to migration assistance that the applicant would provide to students recruited by Australia Go.

101. The combination of the evidence supports a finding that the applicant knew that Mr Ruthenberg was undertaking work for Australia Go in circumstances where that work was not in compliance with the condition attached to his visa. In view of that, the applicant ought to have advised Mr Ruthenberg not to commence such work or to desist from such work until he had regularised his visa status such that he could perform work. Further, the conduct of Mr Ruthenberg in operating Australia Go is consistent with the applicant not having made him aware that such conduct was or could be in breach of his visa condition

102. The mention of 20 students in the applicant's file note of 28 June 20000 and to "money coming in" go clearly to the applicant's knowledge of the extent of Mr Ruthenberg`s involvement in Australia Go and in particular the fact that he was deriving an income for his services.

THE SECOND CONDUCT

103. The NOIC was received on 28 July 2000, however he did not notify Mr Ruthenberg of its receipt and issue a copy of the notice until 14 August 2000. The applicant's assertion that he notified Mr Ruthenberg on 9 August 2000 of its receipt relies upon a diary note dated 9 August 2000 (exhibit 8) which makes no reference to the NOIC.

104. The applicant took instructions regarding the NOIC on 16 August 2000. By that time the applicant had sought and was granted an extension of time which was granted until 25 August 2000. The response was not provided on this date and neither was DIMA contacted until 28 August 2000 at which time Ms Buttigieg-Pocock contacted DIMA and advised that the response would be provided shortly. The respondent submitted that the version of events provided by Mr Mirfassihi should be preferred.

105. The response was not sent until after close of business on 29 August 2000 and it was forwarded to the incorrect facsimile number. The above course of behaviour demonstrates that the applicant did not deal with his client competently and diligently, nor did he act in a timely manner.

THE THIRD CONDUCT

106. The respondent referred to evidence that the applicant drafted or assisted with the drafting of a letter from the Academy to DIMA, and submitted the letter in support of Mr Ruthenberg's response to the NOIC. In that letter, the applicant made certain assertions which he knew or believed were false, inaccurate and/or misleading. Those assertions are that Mr Ruthenberg did not work for Australia Go and that Mr Ruthenberg was not employed at all.

107. Whilst the applicant attempted to justify his use of the term "work" in line with the definition of "work" in the Migration Regulations, there is nothing in that letter to suggest that this was the interpretation that he intended. In any event, the term "work" as defined in the Migration Regulations would encompass the activities of a director of a company, on the basis that such work would normally attract remuneration.

108. The applicant accepted that the letter was an important part of his client's response and that he knew or expected that the letter would be relied on by DIMA in its consideration of the cancellation of Mr Ruthenberg's 457 visa. The letter from the Academy was particularly significant, given that it was Mr Ruthenberg's presence at the Academy's premises which triggered the involvement of DIMA in Mr Ruthenberg's affairs.

CONSIDERATION

109. In deciding this matter I found it necessary to consider what reliability I can place on the testimony of the primary witness for the respondent, Mr Ruthenberg. Counsel for the applicant suggested that his entire evidence should be disregarded in view of the fact he has retracted some of the evidence he gave before the MRT and there were inconsistencies in his oral evidence before this Tribunal. It was said he was a self-interested complainant who would say whatever was necessary to suit his purpose at the time. It was suggested that where there was conflict between the testimony of the applicant and Mr Ruthenberg, that I should prefer the evidence of the applicant.

110. However, in considering that issue, I am mindful of the respondent's submissions that its case is not entirely reliant on the acceptance of Mr Ruthenberg's evidence. Indeed, in many respects, the evidence of the applicant and Mr Ruthenberg as to their dealings with each other in the relationship of migrant and client is not in dispute. In relation to some of the crucial issues, for example, as to whether the applicant had a particular state of knowledge about Mr Ruthenberg's affairs at a given time, their evidence is directly opposed. In such a case, one of the courses of action open to the Tribunal is to accept one version and reject the other, or the Tribunal may find itself in a state of uncertainty, in which case the Tribunal could not be reasonably satisfied whether an allegation has substance.

111. I find that in many respects, Mr Ruthenberg's evidence was unsatisfactory. He attempted to explain away inconsistencies not altogether convincingly and at times was almost dogged in his reluctance to accept what was patently obvious. However, the same criticism could be levelled at the applicant, whose testimony on many aspects was evasive. He had to be pressed, for example, before he conceded that he was an experienced migration agent who would have expected the letter from the Academy to have been given significant weight. He also exhibited considerable reluctance to concede that his firm received referrals from any students, much less any from Australia Go despite the fact in a letter to DIMA dated 2 November 2001 he stated that "the establishment of Australia Go Pty Ltd ... did not result in the referral of many students" (T185-586) (emphasis added).

112. I formed the view that, in giving his testimony, Mr Hartnett attempted to distance himself from any suggestion that he had ongoing contact with Mr Ruthenberg which would have placed him in the position of having a detailed knowledge of Mr Ruthenberg's business activities. There are file notes of consultations within the "T" documents and the exhibits which record what Mr Ruthenberg relayed to him in relation to his activities. The reference in the applicant's notes to the number of students which Mr Ruthenberg was in contact with, the setting up of a possible meeting with representatives of Seven English-Espanol amongst other things, strongly a finding that the applicant was regularly advised of Mr Ruthenberg's activities, and, to use the vernacular, was given almost a "blow by blow" description of Mr Ruthenberg's activities.

113. Mr Ruthenberg provided the applicant with a business plan that proposes a joint venture between Hynes Hartnett and himself. That proposal was dated 10 January 2000. That document refers to Mr Ruthenberg entering into agency agreements with schools and universities and the fact that Mr Ruthenberg would be entitled to earn commission from the university in which the student was enrolled. Mr Hartnett acknowledged that he and Mr Hynes considered that proposal. That document describes the types of activities which Mr Ruthenberg ultimately undertook for Australia Go.

114. Mr Hartnett was given copies of agency agreements by Mr Ruthenberg. The Tribunal finds it difficult to accept that Mr Hartnett was not fully aware, based on his consultations with Mr Ruthenberg, and having read the business plan, that Mr Ruthenberg was engaging in activities which were properly construed as "work".

115. Turning to the issues, firstly did the applicant properly and competently advise Mr Ruthenberg that his involvement with Australia Go was or could be an activity that constituted a breach of his visa condition, as a result of which the visa would be liable to cancellation?

116. Notwithstanding that there was no written evidence that any advice was given, both the applicant and Ms Buttigieg-Pocock's testified that some advice was given. I find that the applicant was aware that Mr Ruthenberg resigned from his position with Saxby as at 31 March 2000 at the latest. I further find that the applicant was aware that it was Mr Ruthenberg's intention to establish a business involving the recruitment of foreign students for Australian educational institutions.

117. I find that Mr Ruthenberg had provided to the applicant copies of agency agreements he had entered into with Queensland education providers and the applicant was informed by Mr Ruthenberg that he was planning to enter into other agreements.

118. The applicant had also been provided with a business proposal by Mr Ruthenberg, the activities described therein virtually mirrored the types of activities Mr Ruthenberg engaged in as director of Australia Go.

119. I find that Mr Hartnett was aware that Mr Ruthenberg was the sole office holder in Australia Go at the time of its incorporation. I am satisfied that Mr Hartnett gave advice to Mr Ruthenberg that when he resigned from Saxby he had the option of finding another sponsor or applying for a student visa.

120. Although Ms Buttigieg-Pocock's evidence was that she was present when the applicant informed Mr Ruthenberg of the risks involved in working without regularising his visa status, I am not reasonably satisfied that the applicant explained expressly to Mr Ruthenberg, in simple terms, that if it was established that he was engaged in work activities for Australia Go his visa could be cancelled. Because of the absence of any note confirming that advice of any nature was given, and Mr Ruthenberg's emphatic denial that no advice was given in relation to not working, I am satisfied that any advice which may have been given in relation to the risks of Mr Ruthenberg working, was not conveyed with sufficient definity.

121. Mr Ruthenberg's testimony was to the effect that he relied heavily on the applicant's advice and guidance. A reasonable inference can be drawn from the fact that Mr Ruthenberg had regular contact with the applicant to discuss his plans that he considered the applicant's input was important and that he did not want to embark on any conduct without ensuring it was appropriate. As an example, Mr Ruthenberg contacted the applicant's office and asked what business entity would provide him with an ACN number, he provided copies of the agency agreements to the applicant, he says, for the applicant's scrutiny. Given that scenario, it is inherently implausible that Mr Ruthenberg, if he had been given specific advice that he should not work, would have continued to be engaged in the activities of Australia Go.

122. It is even more inherently implausible that he would have continued to make plans to expand the Australia Go network if the applicant had provided advice to him specifically that if he worked his visa could be cancelled.

123. I find that the applicant did not provide adequate and particularised advice to Mr Ruthenberg to the effect that his visa would be liable to cancellation. I find therefore that the first conduct was in breach of clause 2.1(b), and/or clause 2.4 of the Code of Conduct, in that he did not deal with his client competently and that he did not have due regard to his client's dependence on his knowledge and experience.

124. In regard to the second conduct, apart from the disparity between the evidence of Ms Buttigieg-Pocock and Mr Mirfassihi as to whether he acquiesced in the response to the NOIC being lodged on 28 August 2000, the circumstances surrounding its lodgement is not in dispute.

125. Whilst some criticism may be levelled at the applicant's behaviour in not notifying his client for 12 days after the faxed receipt of the NOIC was received in his office (on the applicant's evidence) or for something like 15 days (on the respondent's evidence), it is the case that, on 11 August 2000, the applicant had requested and been granted an extension of time.

126. There was clearly some misunderstanding or breakdown in communication between Mr Mirfassihi and Ms Buttigieg-Pocock as to whether the submission would be accepted by DIMA on 29 August 2000. However, irrespective of that, the fact remains that the response was not provided until after close of business on 29 August 2000 and to compound matters, it was sent to the incorrect facsimile number. I find that the applicant, by virtue of Ms Buttigieg-Pocock's actions and his omission to ensure that the submission was received and directed to the right address, did not act in a timely manner and was in breach of clause 2.1(b) of the Code of Conduct.

127. Whilst I accept that the applicant's conduct or omission falls short of exemplary, I am not persuaded that such conduct or omission is of such a nature that it constitutes a failure to deal with his client competently and diligently.

128. In relation to the third conduct, the applicant accepted that he drafted a letter on behalf of the Academy, and that the letter was submitted to DIMA on 29 August 2000 in response to the NOIC. The issue for determination is whether at the time the applicant knew or believed that certain assertions in that letter were false, inaccurate and/or misleading. The assertions in question are that Mr Ruthenberg "did not work for Australia Go" and he "was not employed at all".

129. It was conceded by the applicant, when pressed, that he knew that the letter formed an important part of the response to the NOIC and he knew that it would be relied on by DIMA. For the reasons enumerated elsewhere in these reasons, I find that the applicant had knowledge that Mr Ruthenberg was engaged in activities which might be construed as work. Whilst he asserted in cross examination that he was using the "work" in the sense of that definition in the Migration Regulations, the letter did not have the status of a legal opinion. It was a letter to be signed by someone employed by the Academy. The letter does not suggest that the term "work" is being used other than in its normal sense.

130. At the end of the day, it matters little whether the term "work" was used in the general sense or in terms of the definition in the Migration Regulations. I find that Mr Hartnett had full knowledge of the applicant's involvement in Australia Go. I reject his assertion that he first became aware that Mr Ruthenberg was intending to personally assist international students with placements on 14 June 2000, given his contact with Mr Ruthenberg over the previous few months.

131. Whilst it was contended that the applicant was following the instructions which he took from Mr Ruthenberg, I accept Mr Ruthenberg`s evidence that the applicant dictated in his words what he proposed to write to DIMA. Further, the dictated notes do not, in their entirety, reflect accurately Mr Ruthenberg's instructions and are at odds with the applicant's knowledge of the true state of events. In making those assertions, I find that the applicant knowingly made false, inaccurate and/or misleading assertions and that such conduct is in breach of clause 2.9 and clause 2.1(b) of the Code of Conduct in that he did not deal with his client competently.

132. Section 303 of the Act deals with discretionary cancellation or suspension of a migrant agent's registration. It states as follows:

"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:

...

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

133. Counsel for the applicant stressed strongly that the Tribunal should bear in mind the strong element of disgrace to the person whose registration is suspended. He drew the Tribunal's attention to the serious affect on the applicant's livelihood if suspension was to occur (citing Attorney-General and Minister for Justice Queensland v Priddle [2002] QCA 297). He submitted it was not appropriate to impose an order of suspension as such a decision infers that the person whose registration is suspended is unfit to practice. No such allegation has been made in the present circumstances.

134. Further, it was submitted that if the Tribunal was of the view that suspension was appropriate, such an action would be tantamount to punishing the applicant for providing advice in accordance with the client's instructions.

135. I have considered all those matters and have had regard to the principles espoused in the cases cited. The decision to impose a penalty is discretionary. I have found that the applicant's conduct was in breach of the standards of professional conduct required of migration agents, and that such conduct was not related to a single event. By far the most serious breach relates to the applicant making written assertions which he knew to be untrue. That is not to say that the other breaches are at the lower end of the scale of seriousness.

136. Suffice to say, the applicant's conduct has fallen below the standard expected of a professional person, on whose competence and diligence clients place reliance. Given that the applicant is bound by section 314 of the Act to observe the Code of Conduct and he has committed breaches of that Code, I consider it appropriate that his registration as an agent be suspended for a period of one year. Such period of suspension is to commence on a date to be determined by the Migration Agents Registration Authority.

I certify that the 136 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:

Associate

Dates of Hearing 7 and 8 July 2003

Date of Decision 7 August 2003

Counsel for the Applicant Mr J Douglas QC

Solicitor for the Applicant McCullough Robertson (as agent)

Counsel for the Respondent Mr P Hardman

Solicitor for the Respondent Blake Dawson Waldron