Case: Shi v The Migration Institute of Australia Ltd [2003] FCA 1304 ; (2003) 134 FCR 326
Outcome: related
Tribunal granted stays in respect of each of the Authority's decisions the subject of challenge, although the first refusal decision was only stayed by consent after the matter had been remitted from this Court to the Tribunal in Shi v The Migration Institute of Australia Ltd [2003] FCA 1304 ; (2003) 134 FCR 326; and the cancellation decision was stayed subject to conditions that the respondent be supervised by another migration agent and that he undertake not to engage in any business relating to protection visas. The Tribunal split its decision-making process, first by making findings of fact on the respondent's alleged breaches of the Code of Conduct prescribed by s 314 of the Act finding 51 such breaches, of which 47 related to protection visa cases ('the 6 April 2005 findings') and then, after receiving submissions on those findings, publishing its decision and reasons for decision on 2 September 2005, making findings on whether the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance pursuant to s 303(1)(f) of the Act ('the 2 September 2005 reasons'). The Tribunal made the following findings of fact in the 6 April 2005 findings: (1) The Tribunal found that the respondent did not 'encourage' (in the sense of 'incite') any visa applicant to lodge a protection visa application. It was, therefore, unnecessary to decide whether the applications made were 'grossly unfounded' so as to breach cl 2.17 of the Code as it stood prior to 1 July 1999 (at [46]). However, it found that the respondent's handling of these applications was relevant to other alleged breaches of the Code and to a determination pursuant to s 303(1)(f). (2) The respondent was unaware of the requirement in cl 2.17 of the Code, introduced in 1999, that he obtain written acknowledgement of advice from his client where his advice had been that the visa application was grossly unfounded but the client, nevertheless, wished to lodge the application (at [67]). The Tribunal characterised this as a 'very serious breach' of cl 2.3 of the Code (concerning a sound working knowledge of the Act and Regulations) and a consequential breach of cl 2.1 of the Code (concerning a requirement to act in accordance with the law and competently and diligently) (at [68]). (3) The respondent did not have a sound working knowledge of the Act and Regulations and was not diligent if he was unaware of provisions of the Code so long after they came into force (until they were brought to his attention in the course of investigations as to whether his registration should be cancelled in 2002) (at [69]). (4) The respondent conceded that a number of the applications he had lodged had no hope of success (at [66], [84] and [106]). The Tribunal found that he had made one application that was grossly unfounded (at [107]). (5) The Tribunal found that the respondent had on many occasions breached cl 6.1 of the Code, which requires file notes to be taken of all substantive and material communications between client and agent (at [75], [79], [80], [92], [99], [108], [113], [116], [119] and [215]). The Tribunal considered the massive failure in this regard to be serious (at [130]). The respondent ultimately conceded that he had a systemic problem with keeping adequate file notes and that he had undoubtedly breached cl 6.1 (at [162]). (6) The Tribunal noted instances where the respondent altered his evidence as he became aware of material which contradicted what he had previously said (at [77], [87], [129] and [146]). (7) The Tribunal also criticised aspects of the respondent's evidence as being speculative and unconvincing explanations proffered when he simply did not know what had occurred in relation to particular clients (at [81], [82], [89], [108], [109] and [141]). It also found many instances where the respondent's evidence was designed to excuse his poor handling of an application or file-keeping (at [85], [88], [173] and [222]). These and other defects led to aspects of his evidence not being accepted by the Tribunal on the basis of his credit (at [90], [93], [97], [103], [120] and [167]). (8) Ultimately, the Tribunal 'did not find Mr Shi a reliable witness. His evidence changed on numerous occasions so as to reduce his responsibility for various breaches of the Code or other failures within his practice' (at [232]). (9) The Tribunal found that the respondent had failed to sufficiently address matters required by visa applications, which constituted a breach of cl 2.1 and 2.19 (at [78], [87], [96] and [113]). The Tribunal also noted that the respondent's applications under s 417 were defective in that they did not address the relevant criteria, which the Tribunal found as relevant to his fitness to be a migration agent (at [110]). (10) The Tribunal was critical of the respondent's approach that it was his job to state the facts and for the Department to link the facts to the law. It considered that it was part of his job to know the relevant criteria (at [88]). (11) The Tribunal found that the respondent had repeatedly breached cl 2.8 of the Code by failing to keep his clients informed of the progress of their matters and outcomes in writing (at [89], [92], [101], [137] and [215]). (12) The Tribunal found that the respondent had systemically failed to comply with Part 7 of the Code, which required documentation of amounts of money paid (at [111] and [168]). Moreover, it found that he had chosen not to comply with trust arrangements to save his own compliance costs (at [179]). (13) The Tribunal set out evidence about the respondent's inadequate supervision of his staff in relation to protection visa applications. He allowed cutting and pasting of personal claims (at [115], [118], [140], [142] and [193]). This constituted breaches of cl 8.1 and 8.2 of the Code (at [194]). (14) The respondent conceded and the Tribunal found that the respondent had repeatedly breached cl 5.2 of the Code, which required agents to obtain written acceptance of the terms of service as soon as possible after receiving instructions (at [159]). The Tribunal further found that his failure to comply with this requirement 'reinforce[ed] [its] view that he [had] paid scant attention to the Code at all. He ran his business in his own way. If a practice satisfied the Code, that was coincidental rather than intentional' (at [160]). (15) The respondent conceded that his lodging review applications for three clients in the Tribunal (which had no jurisdiction in relation to the relevant decision) constituted breaches of cl 2.1(b), 2.3, 2.5(a)(iii) and cl 4.1 of the Code (at [197]). (16) The Tribunal noted an instance where the respondent did not appreciate the appropriate procedure. What he had done was inappropriate. He had no idea what needed to be done (at [229]). Because what the respondent had done did not amount to the making of an 'application', it did not breach the Code but it was still relevant to his fitness. The Tribunal found that this case revealed that the respondent 'did not possess a sound knowledge of the Act and Regulations as they related to the circumstances of his client' (at [230]). In the 2 September 2005 reasons the Tribunal concluded that it was not satisfied that the respondent was not a person of integrity or was not otherwise a fit and proper person to give immigration assistance (at [24]). The Tribunal made orders setting aside the four decisions under review (at [28] [31]). The cancellation decision was substituted with a decision that the respondent be issued with a caution pursuant to s 303(1)(c) , to be lifted after three years provided that the respondent be supervised and not provide immigration assistance with respect to protection visas (see s 304A). The first refusal decision was substituted with a decision that the respondent's repeat registration be approved. The suspension decision was substituted with a decision that the respondent's registration not be suspended. The second refusal decision was substituted with a decision to renew the respondent's repeat registration. The Tribunal's reasons for these decisions may be summarised as follows: (1) The Tribunal noted the extent and nature of the respondent's breaches of the Code (at [10]); in particular: (i) that 51 of the alleged 98 breaches had been upheld by the Tribunal; and (ii) that 47 of the 51 sustained breaches related to protection visa cases during the period from September 1998 to October 2001 and the other four related to subclass 457 visa applications filed between October 1997 and January 2000. (2) The Tribunal accepted the respondent's argument that there was no proven disadvantage to any of the respondent's clients because of his conduct (at [11]). (3) The breaches found by the Tribunal, considered as a whole, indicate that the respondent did not appreciate his obligation to know what the Code required and to comply with its terms as they existed from time to time (at [12]), and that if his practice satisfied the requirements of the Code, that was coincidental rather than intentional (at [13]). (4) The Tribunal noted the respondent's contention that 94 per cent of the breaches found related to protection visas (an area in which he had ceased to practise) and occurred over four years ago (at [14]). (5) The Tribunal noted the respondent's argument that his 'current practice' was most relevant when considering issues of public protection and maintenance of proper standards. The Tribunal characterised this factor as a relevant consideration (at [15] [16]). (6) The respondent also sought to rely upon his 'current success rate', a factor which the Tribunal accepted to be relevant (at [17]). (7) The Tribunal found that, in relation to his making s 417 and review applications in the Tribunal, the respondent's actions reflected a lack of understanding of the relevant law and, more importantly, a lack of judgment on his part. 'He seemed to just keep doing something to seek review of a decision, whether or not there was any real chance of success' (at [19]). (8) The Tribunal gave some weight to its adverse findings on the respondent's credit (at [20]). (9) As mentioned above, having considered all the evidence, the Tribunal was not satisfied that the respondent was not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) (at [24]). (10) The Tribunal took into account that the respondent had had a supervising migration agent for over two years who was a knowledgeable and experienced migration agent and who held the respondent in high regard. It also gave weight to the fact that there had been no breaches since the cancellation decision was made and the respondent's rate of success had been very high in recent years (at [24]). (11) The Tribunal concluded that cancellation was not appropriate in relation to the respondent's breaches of the Code (s 303(1)(h)). It considered that the appropriate decision was to issue a caution subject to conditions (at [25] [26]).