Australian Immigration Law

This article discusses the regulations and code of conduct for migration agents under the Migration Act 1958 in Australia. It also analyzes a case study to determine whether a migration agent acted in compliance with the law and whether they are fit and proper to provide immigration assistance.

Running head: AUSTRALIAN IMMIGRATION LAW
Australian Immigration Law
Name of the University
Name of the student
Author Note

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Answer to Question No 1
Issue
It has to be determined in this present context, whether, Tarik Georges has acted in
compliance with Section 303 (1) (h) and 314 (1) of the Migration Act 1958.
Relevant rules
This issue can be resolved by discussing the Migration Act 1958, which deals with the
regulation of the conduct of migration agents. Section 275 of the Migration Act has defined a
registered agent to be an individual who is registered as a migration agent under the Section
286 of this Act1. Section 303 (1) of the Migration Act Provides that Migration Agents
Registration Authority holds the power to cancel of suspend the registration of a migration
agent by removing his name from the register of migration agents. Section 303 (1) (h) of this
Act requires that, migration agents act in accordance with the code of conduct as provided
under the section 314 of the Migration Act. Section 314 of the Migration Act 1958 has
provided with the code of conduct of migration agents. This regulations is intended to bind
the act of the migration agents with a prescribed code of conduct. Section 314 (2) of this Act
requires that a registered migration agent should conduct his activities according to the
prescribed code of conduct. A breach of the code of conduct can result in the professional
discipline. A migration agent has some obligations towards their clients which is provided by
Migration Agent Regulations Authority. This code of conduct includes the responsibilities
and interaction with the clients and the requirement that an agent needs to meet if a complaint
is lodged against him2. If an agent does not abide by the code of conduct, he could face de-
registration, fine or suspension of his registration.
1 Migration Act 1958
2(Lenahung.com.au, 2017)
<https://lenahung.com.au/wp-content/uploads/2017/05/Code_of_Conduct_April_2017.pdf>

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The code of conduct provided by the Migration Agents Registration Authority, shall
ensure that all the agents are acting in compliance with the code of conduct. Any individual
who was enlisted as a registered Migration Agent is bound to follow the code. Part 2 of the
code of conduct states that the professionalism of the Registered Migration Agent should
reflect on his sound working knowledge of the Migration Regulations and Migration Act and
any other legislations regarding to the procedure of migration and his capacity to provide
accurate advice from time to time. It is further stated in this part that the Migration Agent
should make all necessary arrangements to avoid a financial loss to his client. Part 2.9 of this
code of conduct requires that a migration agent should not make any inaccurate or misleading
statement which he believes to be against the provisions of Migration Act or regulations. If an
application has no hope to be succeed, the Migration Agent should communicate it to the
client and should not encourage the client to lodge that application.
In the case of Shi v Migration Agents Registration Authority [2008] HCA 31, the High
Court found that if there is an unjustified defects in the conduct of the migration agent, the
agent might face legal consequences for his act while dealing with the clients, including
cancellation and suspension of the registration3. The Migration Agents Registration Authority
observed that Mr Shi had caused a breach of the code of conduct for a migration agent in
relation to application for visas and it was also satisfied that Mr Shi was not a proper and fit
person to provide immigration assistance.
Application
In this case, it can be observed that, the Migration Agent, Tarik Georges, did not act
in accordance with the Migration Act 1958. The Migration Act has provided with the
regulations to be followed by the migration agent, which, Tarik Georges did not follow. Tarik
Georges was not confirmed about the fact whether SPPL was closed or not. Certainly he had
3 Shi v Migration Agents Registration Authority [2008] HCA 31

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commenced a breach of code of conduct by not taking into account the objective criteria
purporting to make the application under the Migration Act. It was his duty to be candid so as
to the request of his client for assisting as a migration agent for making an application
achieves success. Tarik Georges, was needed to exercise his discretionary power and take a
proactive action to clear the confusion whether SPPL was in operation or not. It was also his
duty to inform the Department about the misunderstanding and withdraw the application by
informing the Department. This is a clear breach of code of conduct for a migration agent that
Tarik Georges failed to oblige with his duty. While providing immigration assistance to SY
and SPPL, he failed to get accurate knowledge about what he was doing and what were its
consequences. He should have made an arrangement to avoid this situation by informing it
duly to the client. As Tarik was made aware of the defects in the grant of application for visa,
he should have stopped providing documents to the Department in the support of the visa
application by SY. Despite of having a knowledge about the circumstances, Tarik provided
the copy of the employment contract between SY and SPPL to the Department. In the case of
Beau Timothy John Hartnett v Migration Agents Registration Authority [2004] FCA 50, the
authority observed that the agent had failed to deal with his client with due diligence,
competence and without any conflict of interest which could affect the legitimate interest of
his client contravening the clause 2.1(b) of the code of conduct4.
Conclusion
From the aforesaid discussion, it can be decided that Tarik Georges did not act in
compliance with the code of conduct for a migration agent while providing immigration
assistance to SPPL and Sy.
4 Beau Timothy John Hartnett v Migration Agents Registration Authority [2004] FCA 50

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Answer to Question No 2
Issue
It has to be determined whether Tarik Georges is a person of integrity or not fit and
proper for the purpose of giving immigration assistance.
Relevant Rules
Section 303 of the Migration Act 1958 provides that the Migration Agents should act
in accordance with the disciplines for the migration agents. It could take an action against the
agent after being satisfied that the agent is not a person of integrity or otherwise is not a
proper of fit person to give assistance for immigration purpose. It should also consider
whether the agent has acted in contravention of the Code of Conduct which is prescribed
under Section 314 of the Act. In the case of Boni Amin v Migration Agents Registration
Authority, it was found by the Migration Agents Registration Authority that Mr Amin had
breached the code of conduct and was satisfied that he was not a person of integrity and not a
fit or proper person to provide immigration assistance pursuant to Section 303 (f) of the
Migration Act5. An application for the repeat registration should not be granted as he is not a
person of integrity or not fit and proper as provided under Section 290.
Part 1.10 of the code of conduct for migration agent states that a code of conduct
should set out the minimum standard of abilities and attributes to be performed by a
registered migration agent. This includes that the person must be fit and proper person to
provide immigration assistance. It also requires that the registered migration agent should be
a person of integrity and of good character.
In the decision of Nima Mottaghi v Migration Agents Registration Authority [200]
AATA 60 it was held that the Migration Agents Registration Authority should take into
5 Boni Amin v Migration Agents Registration Authority

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account some matters before considering whether a person is not fit and proper or not a
person of integrity6. The matters include: the extent of the knowledge of the agent about the
migration procedure as mentioned in the Migration Act, and the factor that he is a fit and
proper person or a person of integrity, to give immigration assistance.
The meaning of the term fit and proper was thoroughly discussed in the case of
Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR
127. It was decided that, fit in respect to an office involves three factors. The said factors
were ability, knowledge and honesty. Honesty in respect means to execute their duty truly, in
the absence of any partiality or malice affection. Knowledge in this sense means the idea of
what he is required duly to do as a migration agent and ability emphasised that he should
execute and intend his office, whenever there is a need of due diligence7.
Australian Broadcasting Tribunal v bond and Ors [1990] HCA 33 (1990) 170 CLR
321 expressed the term fit and proper person in a different way. In this case, Toohey and
Gaudron JJ elaborated that this terms gets its meaning from its context8. It shall be
enumerated from the activities to which a person is engaged or will be engaged and the end
which will be served by the activities.
Application
In this given scenario, applying the Section 303 of the Act, it can be observed that the
migration agent, Tarik Georges was not a fit and proper person to provide immigration
assistance. It appears from the case that he was not proper as a migration agent as he did not
inform the client about not being eligible for the grant of his visa as the sponsoring business
was closed. He was not clear about the context of his obligations towards the client. In
between the dilemma of whether the business of SPPL was in operation or not, he should
6 Nima Mottaghi v Migration Agents Registration Authority [200] AATA 60
7 Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
8 Australian Broadcasting Tribunal v bond and Ors [1990] HCA 33 (1990) 170 CLR 321

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have taken an active step to clear the misunderstandings as it was a significant matter relating
to effect the grant of his visa. He should have acted with more responsibility than he did by
inspecting the issue by his own with due care to avoid this consequence. It was his duty only
to inform the SY but also to the Department. He did not made any communication about its
effect on grant of visa and further he continued to provide documents to the Department in
support of the grant of visa application of SY. It is expected that a registered migration agents
shall have the detail knowledge of his duties and obligation as provided under the code of
conduct for migration agents.
In this respect, referring to the explanation of the expression made in the case of
Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR
127, it can be found that Tarik Georges was not fit and a proper person to provide
immigration assistance as he did not fulfilled the criteria of holding knowledge, ability and
honesty towards his client. Instead of reporting to his client about the circumstances that the
sponsoring business SPPL was closed, he proceeded with providing documents to the
department in support of granting visa. In all circumstances the migration agent Tirak
Georges can be found to be not proper and a fit person taking into account his activities. It
can be observed from the statutory scheme for the registered migration agents that their
conduct should be intended to protect the interest of the members seeking immigration
assistance. The agent should have acted with professionalism to avoid this type of error while
dealing with client. He was expected to follow his duty by disclosing the issue to his client
and the department as decide in Seymour v Migration Agents Registration Authority [2007]
FCAFC 5. For the part of the migration agent, he must fulfil his role in implementation of the
Migration Act 1958. He must act in accordance with Section 314 of the Act which prescribes
a code of conduct for the migration agent and requires them to conduct himself in the
prescribed manner.

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In the Re Peng and Department of Immigration and Multicultural Affairs [1998]
AATA 12, it was considered that while determining a registered migrant agent to be a fit and a
proper person to provide immigration assistance, the person in not only responsible for his
assistance provided to the clients, but also to the department9. For the purpose of granting
visa, the agent should be responsible for providing assistance to the Department by acting in
an honest way, particularly when a fact about a case is known to the agent. He is ought to
disclose all the necessary facts to the required party that he is or will be dealing with. The
need for integrity or fitness of the agent is not only to the extent of protecting the clients but
also extends to open, efficient and honest administration of immigration matters that the
agent is involved in. To be a registered migration agent it is required that the person act with
all his effort to avoid any such circumstances.
Conclusion
In this given scenario, from studying the relevant rules and its application in this
context, it can be decided that it would justified for the Authority to be satisfied that Tarik
Georges was not a fit or proper person to provide immigration assistance pursuant to section
303 (1) (f) of the Act.
Answer to Question No 3
Issue
The present issue in this context is to determine whether the Authority should caution,
cancel or suspend the registration of the Agent if they are satisfied that he is not a fit and
proper person to give immigration assistance.
9 Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12

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Relevant Rules
This issue can be decided after discussing the Section 303 of the Migration Act 1958.
Section 303 of the Migration Act prescribes a disciplinary action for the migration agents.
This section requires that the Migration Agents Registration Authority has the power to
cancel the registration of a migration agent by removing his name from the register, or may
suspend his registration or caution him. Prior to suspend, cancel the registration or cautioning
him, the migration agents registration authority needs to be satisfied that the agent was not a
person of integrity or is not a fit or a proper person to give assistance for immigration; or the
agent has not acted in compliance of the code of conduct as mentioned under Section 314 of
the Act. Part 1.6 of the code of conduct enables the Authority to ensure compliance of this
code of conduct. If a breach of this code has occurred, then the Authority is empowered to
take an action ranging from a caution through the suspension of the registration or the
cancellation of the registration of a migration agent. Part 1.12 of this code imposes a duty on
the registered migration agent to act on every times in respect to the lawful interests of the
client. It further states that any such failure to this requirement can result into cancellation of
the registration of that agent.
In the case of Frugtniet and Migration Agents Registration Authority [2016] AATA
299 Migration Agents Registration Authority decided to cancel to the registration of the agent
under section 303 (1) (a). It decided to do so after they found that Mr Frugtniet was not a
person of integrity, or otherwise is not a fit or proper person to give immigration assistance10.
They also found that the migration agent Mr Frugtniet had not complied with the clauses of
the code of conduct for the migration agents. In consequence, MARA decided to cancel the
registration of Mr Frugtniet as a migration agent for anytime within the five years of the date
of cancellation.
10 Frugtniet and Migration Agents Registration Authority [2016] AATA 299

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Application
The Authority can cancel, suspend or caution the registration of the agent after it is
satisfied that Tarik Georges had acted in contravention of the code of the conduct and is not a
person of integrity or fit and proper to give immigration assistance. Tarik Georges provided
the copy of the employment contract between SPPL and SY to the Department, even after
having no clear knowledge whether SPPL had closed. Though SY had informed that it was in
operation, and was obliged to notify the changes in circumstances, it was his duty at this
situation to report the fact to the department. He failed to do so and breached the code of
conduct. The reasoning can be supported by the decision of Hill J in the case of Stasos v Tax
Agents’ Board of New South Wales, where it was held that to be considered as a fit and
proper person the agent must omit from any breach of code of conduct11. Tarik Georges
conduct satisfied the criteria that the he is not a fit and proper person to hold the registration,
thus it would be appropriate for the Migration Agents Registration Authority to cancel,
caution or suspend the registration of Tarik Georges.
Conclusion
Therefore, Tarik’s registration can be cancelled or suspended or cautioned.
11 Stasos v Tax Agents’ Board of New South Wales

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References
Website
(Lenahung.com.au, 2017)
https://lenahung.com.au/wp-content/uploads/2017/05/Code_of_Conduct_April_2017.pdf
Statutes
Migration Act 1958
Cases
Australian Broadcasting Tribunal v bond and Ors [1990] HCA 33 (1990) 170 CLR 321
Beau Timothy John Hartnett v Migration Agents Registration Authority [2004] FCA 50
Boni Amin v Migration Agents Registration Authority
Frugtniet and Migration Agents Registration Authority [2016] AATA 299
Nima Mottaghi v Migration Agents Registration Authority [200] AATA 60
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Seymour v Migration Agents Registration Authority [2007] FCAFC 5
Shi v Migration Agents Registration Authority [2008] HCA 31
Stasos v Tax Agents’ Board of New South Wales
Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127