Interpreting the Code of Conduct

Any ambiguity in the Code of Conduct should be resolved in favour of the migration agent. This approach was endorsed by Allsop J in Kazacos v MARA [2007] FCA 1573 (15.10.07) even though the court found against the agent.  Allsop J said:

Of course, the approach to the construction of the delegated legislation should recognise the serious consequences for the migration agent of a finding of misconduct. In that sense the provisions can be described as penal: Hanna v MARA (1999) 94 FCR 358 at 363. However, as I said in ACCC v Liquorland [2006] ATPR 42-123 at [45]-[48], the meaning of a penal provision is to be ascertained using the ordinary rules of statutory construction and interpretation, but recognising that if, as a matter of last resort after those rules are applied, the language of the statute remains ambiguous or doubtful, such ambiguity or doubt may be resolved in favour of the subject. What is to be rejected is an approach which, because the provision is penal, employs a literal analysis with an eye to the discernment of textual ambiguity through finely spun distinction: see also Pearce DC & Geddes RS, Statutory Interpretation in Australia (5th ed, Butterworths, 2001) at p 232 [9.8].

Allsop J through some light on how an employee migration agent is bound by the Code of Conduct:

11 One can see that these obligations may or may not, in any given context, be relevant to a migration agent who works entirely as an employee. If such a person had no part in liaising with clients, with receiving funds, with the operation of the practice or with controlling the bank accounts, it may well be that such obligations do not affect the daily working professional life of such a person.

12 Equally, one can see a need for an express regime whereby the duties as are found in Part 7 are placed on persons (including companies) who employ migration agents and who (lawfully) ask for or receive fees or reward for the giving of immigration assistance by employed registered migration agents.

In this case Allsop J rejected the notion that a migration agent could insulate himself from the effects of the Code through using a corporate entity which he owned and controlled.