Telling Lies About What was Done
Giving assurances to clients which are not correct may lead to a suspension of registration as a migration agent. Often because of the exigencies of practice one may not get around to doing what one promised the client that one would do.
In S v MARA [2007] AATA 1245 (20.4.07), the agent had told the client that skill assessment applications had been lodged but in fact none were lodged. The AAT described the situation thus:
23. This pattern of falsely indicating that the applications for assessment had been lodged and had been followed up continued with e-mails sent by the applicant on 26.6.03 & 9.9.03. In addition, both during and after that period the first complainants sent numerous e-mails to the applicant that went unanswered.
24. By.. letter dated 24.1.04 the.. complainants sought from the applicant an account of his dealings on their behalf and what of their funds had been spent. The applicant responded to that request by an e-mail dated 24.2.04 and promised to “answer your question by the end of this week.” That was not done.
25. It is next relevant to note that on 19.6.04 the.. complainants made a formal complaint to the respondent. To that point, a period in excess of 2 years from their first contact with the applicant, no application for assessment of qualifications had been submitted.
It is unclear when the applications for assessment were first made. I have a letter on the applicant’s letterhead to the Qualifications Assessment Unit of CPA Aust seeking an assessment of the qualifications of Ms Plakman. It bears the date 30.7.04 but the evidence of Ms H, the manager of the Qualifications Assessment Unit.., is that it was received on 22.9.04. Curiously, it was seemingly accompanied by a bank cheque, representing the fee payable for the assessment, dated 2.3.04. In any event the assessment, when finally undertaken, was not favourable.
27. I have a similar letter bearing the date 2.8.04 to the Australian Computer Society. It also was said to have been received by that organization on 22.9.04. It was accompanied by a bank cheque dated 5.3.04. This assessment, when undertaken, was also unfavourable.
28. In the meantime the complaint to the respondent by the.. complainants was investigated. On 3.11.05 the applicant was interviewed at some length in relation to the circumstances of this complaint by representatives of the respondent.
The second complaint involved lodging an application to the MRT one day out of time.
The first issue that the AAT determined was whether organising a skill assessment was ‘immigration assistance’ within the meaning of s. 276 of the Migration Act. That section states:
276. (1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
The AAT noted:
Obtaining an assessment of qualifications was an essential element of the application for a visa. The steps necessary to obtain an assessment of qualifications amounted to conduct in connection with a visa application and accordingly fell within the definition of “immigration assistance”
The AAT reduced the period of suspension from 12 to 6 months as it concluded:
73. The applicant’s conduct in relation to the.. complainants is more troubling. There, for.. in excess of 2 years, he falsely presented to them that he had lodged their applications for skills assessment when he had not. He created an elaborate web of deception that had the effect that the.. complainants spent some 2 years in limbo, uncertain about their future and unsure whether they would be successful in their applications for visas. There can be no doubt that the applicant’s conduct towards them was disgraceful.
74. The applicant, whilst admitting his culpability, was quite unable to explain why he had lied to the.. complainants over the period that he did. It is a curious feature of the case that the applicant did not benefit financially from doing so; he say.. he still retains the full amount of the fees paid by the.. complainants in his trust account.
75. Whilst the applicant did not himself propound an explanation it seems to me that the only logical explanation is that having initially told an untruth to conceal a failure to act in accordance with his clients’ instructions he found himself caught up in an increasingly impossible situation. He could not, without admitting his lack of competence, act truthfully towards his clients and was for this reason compelled to maintain the façade. He lacked the fortitude to tell the.. complainants what had gone wrong.
76. But.., I have concluded that these matters do not warrant the conclusion that the respondent seeks. In the circumstances of this case, and particularly having regard to the other evidence of “good character” and absence of other complaints, I have reached the conclusion that the applicant’s conduct was indeed out of character and that, notwithstanding that conduct, he was and is otherwise a person of integrity and a fit and proper person to give immigration advice.
The AAT initially sought to impose a condition that the migration agent practice under the supervision and mentoring of an experienced migration agent. MARA argued that since the application for re-registration had been suspended the AAT had no power to impose conditions. The migration agent agreed voluntarily to accept the mentoring condition & the AAT reduced the suspension from 12 to 6 months.