Federal Court of Australia

Kearney v Migration Agents Registration Authority [2026] FCA 1615

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Applicant pay the costs of the First Respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWLING J

Introduction

1    The applicant, Ms Simone Kearney, appeals a decision of the Administrative Appeals Tribunal in which it affirmed the decision of the Migration Agents Registration Authority, to cancel her registration as a migration agent for a period of five years pursuant to s 303(1)(a) of the Migration Act 1958 (Cth): Kearney v Migration Agents Registration Authority [2024] AATA 1899.

2    The circumstances of the cancellation of the applicant’s registration were described by the Tribunal as arising from fraudulent schemes, involving a former member of the Parliament of Australia Mr Craig Thomson (referred to by the Tribunal as SWWJ because at the time of its decision his curial proceedings were not concluded), and involving a solicitor in NSW Mr Joe Nasr, each of whom procured the services of the applicant’s migration agency Affordable Visa Solutions (AVS). AVS was engaged to lodge applications for visas to Australia on behalf of non-citizens residing elsewhere, together with associated applications on behalf of nine businesses to nominate those visa applicants as their employees, but without the knowledge or permission of those businesses and in circumstances where the documentation relating to the nine businesses was fabricated. The applicant denies any knowing involvement in those schemes, saying rather that she was also a victim of the fraud, as explained below.

3    The grounds for the Tribunal affirming the cancellation decision were findings that the applicant breached cll 2.1, 2.8(a), 2.23, 5.2, 6.1 and 6.1A of the Code of Conduct for migration agents (extracted below) and so contravened s 303(1)(h) of the Act, and that she was not a fit and proper person to give immigration assistance within the meaning of s 301(1)(f) of the Act.

4    The applicant appeals from these findings as well as the penalty imposed for the breaches of the Code, seeking orders that the Tribunal decision be set aside and her application for review of the Authority’s decision be remitted for consideration according to law.

5    By a notice of appeal filed on 19 July 2024, the applicant relied on nine grounds of appeal. In her amended notice of appeal filed on 20 January 2025, she pressed only the following four grounds:

(1)    The Tribunal erred in law in finding that the applicant was in a migration agent/client contractual relationship with each of the nine businesses.

(2)    The Tribunal erred in finding, in the circumstances, that the applicant was required to take steps to verify the instructions purportedly provided to her by the nine businesses.

(3)    The Tribunal erred in finding that the applicant had breached clauses 2.1, 2.8(a), 2.23 and 5.2 of the Code.

(4)    The Tribunal erred in finding that the applicant had been reckless or complicit in false information about the nine businesses having been provided to the Department of

Immigration.

6    For the following reasons, the appeal is dismissed.

Background

7    The applicant was first registered as a migration agent on 19 October 2011, and renewed her registration annually, with the most recent renewal application made on 13 September 2022.

8    From June 2016 to February 2019, the applicant says she had “stepped back” from running AVS to “grieve the death of her son, to care for physically ill and mentally ill family members, and to care for her then 3-year-old daughter, and to care for her newborn son born in 2018.” She said that during this period an AVS employee assisted her to run the migration practice and the applicant’s role was “limited to approximately 1 hour per day to provide general oversight of her business”.

9    On 20 September 2018, a complaint was made to the Authority by the Department of Home Affairs about the applicant’s conduct as a registered migration agent, alleging that she had lodged a nomination application under the Regional Sponsored Migration Scheme (RSMS) on 22 May 2017 without the knowledge and permission of the sponsoring business.

10    The applicant claimed that the relevant documents for that sponsoring business were provided to her by Mr Thomson who she understood to be acting as an intermediary between the business and AVS. She said she was first contacted by Mr Thomson in 2016, during which time he introduced the applicant to the head of the local regional certifying body which the applicant explained “has regulatory responsibilities in relation to nominating businesses to ensure that the business meets the requirements for nominations”. The applicant said she understood Mr Thomson to operate a business which provided hospitality training to employees under the RSMS, and that he had introduced the applicant to approximately 13 businesses for whom AVS had provided migration services in connection with 15 visa applications. It is apparent that not all of these applications were the subject of the complaint made to the Authority.

11    On 3 April 2019, the applicant was sent a notice by the Authority issued under s 309(2) of the Act, stating that it was considering cautioning the applicant, or suspending or cancelling her registration, and inviting a response. On 29 May 2019, the applicant responded with written submissions and evidence.

12    On 28 June 2019, a new complaint was raised by the Authority itself, after its investigations revealed that eight nomination and corresponding visa applications under the Employer Nomination Scheme (ENS) had been lodged by the applicant between 2015 and 2017 without the knowledge or permission of the eight associated sponsoring businesses. The applicant was in August 2019 issued a second s 309 notice and was invited to respond to this second complaint. She responded on 7 November 2019.

13    The applicant claimed that these eight ENS applications had been initiated by requests from Mr Nasr or his associates, with the applications relying upon information and documents he provided or documents created or amended by the applicant on his instructions. She said she was first approached by Mr Nasr in May 2015 and was told he was a solicitor with a law firm in Sydney who was in contact with both Australian businesses seeking highly skilled workers, as well as a “lot of really high-level skilled people” in China. She said she met with Mr Nasr around three or four times, with other communications by telephone or email, and her evidence during re-examination before the Tribunal was that upon meeting Mr Nasr, she searched for his website and details through the Law Institute of New South Wales.

14    On 29 June 2023, the Authority decided to cancel the applicant’s registration as a migration agent pursuant to s 303(1)(a) of the Act (cancellation decision). This decision was based on the Authority’s findings that the applicant had breached her obligations under cll 2.1, 2.8(a), 2.9, 2.23, 5.2, 6.1 and 6.1A of the Code. The Authority was also satisfied that the applicant was not a person of integrity or otherwise a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) of the Act.

15    On 6 July 2023, the applicant applied to the Tribunal for review of the cancellation decision. The application was heard by the Tribunal on 12 and 13 March 2024.

16    On 21 June 2024, the Tribunal affirmed the cancellation decision under s 303(1)(a) of the Act (Tribunal decision).

Legislative framework

17    The Act stipulates the powers and responsibilities of the Authority, which include receiving and determining applications for registration of migration agents, and maintaining a register of successful applicants containing specific information about them: ss 287, 288, 289 of the Act.

18    Section 303 of the Act confers power on the Authority to discipline registered migration agents. At the time of the Tribunal decision it relevantly provided:

Disciplining registered migration agents

(1) The Migration Agents Registration Authority may:

(a)    cancel the registration of a registered migration 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:

…

(f)    the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g)    an individual related by employment to the agent is not a person of integrity; or

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

Note:    If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

…

19    Section 314 of the Act provided that the regulations may prescribe a Code of Conduct for migration agents, in accordance with which registered agents must conduct themselves: s 314(2).

20    The Code was, at the time of the applicant’s conduct in question, prescribed by Sch 2 to the Migration Agents Regulations 1998 (Cth) (I note that the code currently in force has been prescribed by the Migration (Migration Agents Code of Conduct) Regulations 2021 (Cth) since it came into force on 1 March 2022). The relevant clauses of the Code which the Tribunal found had been breached by the applicant were:

2.1     A registered migration agent must always:

(a)    act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and

(b)    deal with his or her client competently, diligently and fairly.

…

2.8     A registered migration agent must:

(a)    within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; …

…

2.23     A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.

…

5.2     A registered migration agent must:

(a)    before starting work for a client, give the client:

(i)    an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and

(ii)    an estimate of the time likely to be taken in performing the services; and

(b)    as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:

(i)    the estimate of fees; and

(ii)    the estimate of the time likely to be taken in performing the services; and

(c)    give the client written confirmation (an Agreement for Services and Fees) of:

(i)    the services to be performed; and

(ii)    the fees for the services; and

(iii)    the disbursements that the agent is likely to incur as part of the services; and

…

6.1    A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:

(a)    a copy of each client’s application; and

(b)    copies of each written communication between:

(i)    the client and the agent; and

(ii)    the agent and any relevant statutory authority; and

(iii)    the agent and the Department regarding the client; and

(c)    file notes of every substantive or material oral communication between:

(i)    the client and the agent; and

(ii)    the agent and an official of any relevant statutory authority; and

(iii)    the agent and the Department regarding the client.

6.1A A registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.

21    These clauses (aside from cl 2.23) rely upon the term ‘client’.

22    At the time of the applicant’s conduct in question (but not at the time of the Tribunal hearing or decision), the Regulations contained a definition of ‘client’ in reg 3(1). The Authority submits that the definition of ‘client’ contained in the Regulations applies to the Code, by the effect of s 46(1)(b) of the Acts Interpretation Act 1901 (Cth). However, s 46(1)(b) does not apply to legislative instruments, such as the Regulations (which contained the Code). Despite this, I am satisfied that the definition of ‘client’ contained in the Regulations does apply to the Code, given that the Code as a schedule to the Regulations is taken to be part of the Regulations, and there is no contrary intention to suggest that the definition does not apply to the Code: see s 13(1)(b) of the Acts Interpretation Act 1901 (Cth); s 13(1)(a) of the Legislation Act 2003 (Cth). In any event, the parties proceeded on the basis that this definition applied to the Code.

23    The definition in reg 3(1) of the Regulations was as follows:

client, of a registered migration agent, means a person to whom the agent agrees (whether or not in writing) to provide immigration assistance.

24    The Authority stated in its submissions to this Court that the different definition of ‘client’ now provided for in s 306C(1) of the Act is “inapplicable in this matter”, because that section only commenced after the applicant’s conduct in question and the Authority’s decision. In fact, s 306C(1) in its current form commenced on 22 March 2021, and was in force at the time of the Authority’s decision (and referred to by the Authority at [109] of the cancellation decision), but I accept, as the Authority contends, that this new section is not applicable to the present matter because it commenced after the applicant’s conduct.

25    Regulation 3(1), in turn, relies on the term ‘immigration assistance’. Section 276 of the Act (within Pt 3 concerning ‘Migration agents and immigration assistance’, which contains ss 303 and 314) relevantly provided at the time of the applicant’s conduct in question (and the time of the Tribunal hearing and decision):

(2)    For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a)    preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

(b)    advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or …

(3)    Despite subsections (1), (2), (2A) and (2B), a person does not give immigration assistance if he or she merely:

(a)    does clerical work to prepare (or help prepare) an application or other document; or

(b)    provides translation or interpretation services to help prepare an application or other document; or

(c)    advises another person that the other person must apply for a visa; or

(d)    passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

(4)    A person also does not give immigration assistance in the circumstances prescribed by the regulations.

I note for completeness that neither party addressed the Court on subss (3) or (4) as being relevant to this appeal.

26    Relevantly to that definition, s 275 of the Act at the time of the applicant’s conduct in question (and the time of the Tribunal hearing and decision) provided that “migration procedure means the law, and administrative practice, relating to immigration”.

Tribunal decision

27    The questions before the Tribunal were not disputed: at [20] of the Tribunal’s reasons. They were whether the applicant failed to comply with the Code pursuant to s 303(1)(h) of the Act and whether the Tribunal was satisfied that she is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance pursuant to s 303(1)(f) of the Act (I note that while [20(a)] and [247] of the Tribunal’s reasons refer to “s 301(1)(h)” of the Act, it is clear that this is a typographical error and they should refer to s 303(1)(h)). If either question was answered in the affirmative, the Tribunal was to determine whether to exercise the discretion in s 303(1) of the Act to cancel or suspend the applicant’s registration, or to caution her.

28    The Tribunal summarised the factual matters comprising the two complaints made about the applicant, which drew from the undisputed description in the Authority’s reasons for its decision. It then summarised the parties’ submissions, and the applicant’s oral evidence before the Tribunal regarding the various elements of the complaints and the inconsistencies in the documentation provided to support the nomination and visa applications.

29    The Tribunal at [207]–[208] was satisfied that the applicant provided immigration assistance to the nine businesses, and that Mr Thomson and Mr Nasr were intermediaries in that process.

30    The Tribunal at [217] was satisfied that the applicant should have known that the nine businesses were her clients in terms of her obligations under the Code. It observed that she did not at any time obtain instructions from those clients, relying only on the material forwarded to her by Mr Thomson and Mr Nasr which she considered “they ‘must have’ obtained from the respective businesses” even though that material was proven before the Tribunal to have been fabricated: at [217]. In particular, the Tribunal considered that a letter Mr Thomson provided to the applicant purportedly from a firm of accountants in support of the RSMS application was “clumsily” and “fraudulently altered”, and that this should have been apparent to the applicant: at [209]–[212].

31    The Tribunal determined that the applicant breached cl 2.8(a) of the Code because there was no evidence before it that the applicant had any authority to act for the client business in respect of the RSMS nomination application. In fact, after one of the applicant’s employees sent a direct email to the owner of that business asking for updated financial information for the application that had been lodged, the business owner replied saying he did not have any knowledge of the visa nominee. Despite knowing this, the applicant “persisted in providing information to the Department”, being updated financial information that Mr Thomson subsequently provided, which the Tribunal found “particularly concerning”: at [120], [213], [236], [244]. The Tribunal likewise considered that there was no evidence of any instructions to act on behalf of seven of the businesses in respect of the ENS nomination applications that it listed: at [218]–[219].

32    The Tribunal determined that the applicant breached cll 2.1 and 5.2 of the Code on the basis that she did not act in pursuit of the legitimate interests of her clients, being the nine businesses, with which AVS had no service agreements: at [220].

33    The Tribunal determined that the applicant breached cl 2.23 of the Code by managing the nine nomination and visa applications with a “lack of diligence”, showing a “disregard for migration law and the reputation of the migration advice profession in general”: at [220]. The Tribunal pointed to a number of examples across the applications:

(1)    In a nomination application lodged on behalf of a childcare centre, nominating an employee for the position of ‘Corporate General Manager’, the Tribunal observed that it is not clear why such a position would exist for that employer, and further that the proposed salary of $180,200 “would not seem proportionate in that industry sector”: at [221]. It said these factors should have immediately raised concerns for the applicant.

(2)    For two of the nomination applications, the applicant said she thought documents provided to her by Mr Nasr were genuine because a Justice of the Peace had certified the documents. The Tribunal considered that all the JP did was certify that a copy of another original document was a true copy of it, so where the original document was a fake that is not something that a JP could be aware of: at [222].

(3)    For a number of the nominations, the applicant’s evidence was that she had ‘cut and pasted’ details in position descriptions from another document relating to a different position when preparing position descriptions to upload in support of the nomination: at [223]. In one of the nomination applications lodged on behalf of a cosmetics company, the position description uploaded by the applicant described one task of the nominated employee as “obtaining soil and rock samples at different depths across sites and testing samples to determine strength, compressibility and other factors”, which the applicant admitted was most likely the result of the cutting and pasting method from an unrelated position description. The Tribunal considered this to “display recklessness” and it was disturbed by the applicant’s “blasé attitude” about this activity, particularly in circumstances where there was no evidence that the preparation of those position descriptions was in consultation with or approved by the clients (or even Mr Nasr, despite the applicant’s oral evidence that he “would have” approved them): at [223]–[225]. When the applicant said it was “unfortunate” both that unrelated details were included in the position description and that this error was not identified by Mr Nasr when he apparently approved the documents, the Tribunal said this attitude was “completely disengaged from a grasp of her own responsibilities as a registered migration agent”: at [225].

(4)    The evidence before the Tribunal included files held by the applicant marked ‘do not use’ which related to a company called ‘Formscaff’, who the applicant had said had never been a client of hers (nor had any relation to any of the nine nominations). Some of the contents of these documents appeared to have been ‘cut and pasted’ into other documents uploaded in support of one of the nomination applications, but the applicant could not explain why she had those documents: at [227].

34    The Tribunal determined that the applicant breached cll 6.1 and 6.1A of the Code by retaining credit card and bank details of former visa applicants, as well as deleting emails relating to the applicant’s interactions with clients or third parties, which she said she or her staff did because her email inbox reached its capacity: at [89], [229]. The claim that emails were deleted due to capacity restrictions was part of the applicant’s explanation about why certain evidence (for example emails she said would have existed from Mr Nasr approving position descriptions) was not able to be produced to the Tribunal: at [224], [232]. The applicant conceded that the retention of client card and bank details and the deletion of emails breached the Code, but submitted they were “relatively minor” deficiencies which the applicant had since rectified by putting new procedures and software in place at AVS: at [183], [191], [193], [229]. The Tribunal said notwithstanding recent changes, it was satisfied that for several years there were systemic poor practices in the applicant’s business and it was “significantly concerned” about the deletion of a large number of business-related emails. While not making a finding that the applicant deliberately deleted emails to advantage herself in the Authority’s investigation, the Tribunal said the applicant’s evidence that she or her staff “might” have deleted certain emails did not meet her obligation to keep complete and proper records of client files: at [231]–[232].

35    The Tribunal said it “might accept that there were significant and tragic personal events that led to” the applicant ceasing full-time work for a period, but noted that the applicant conceded that she continued to work for “at least” an hour per day during this period and accepted that any work undertaken by her employees at AVS (even other registered migration agents) was done in her name: at [226]. The Tribunal also accepted that beginning in 2011 the applicant had “many years of successful and professional activity as a migration agent” before the conduct complained about (noting she had submitted she had worked on hundreds of other nomination applications: at [90]), but it considered that she was therefore not newly registered and ought to have known her responsibilities under the Code: at [244].

36    The Tribunal was satisfied that the applicant was “completely indifferent to her professional responsibilities” in respect of the nine applications: at [233]. It found that the applicant provided misleading or false information to the Department in relation to those nine applications, contrary to her responsibility to support the integrity of Australia’s migration system: at [233]. The Tribunal did not, however (contrary to the Authority’s submission before me), characterise that as a breach of cl 2.9 of the Code, which is only breached where statements are made or encouraged to be made in support of an application which are known or believed to be misleading or inaccurate.

37    In considering whether to make an adverse credibility finding about the applicant and make a finding under s 303(1)(f) of the Act (extracted above), the Tribunal observed that the applicant was on occasion in her evidence to the Tribunal “not forthcoming” and some of her answers “had the flavour of defiance”. But noting the applicant’s consistent evidence that she accepted information given to her by Mr Thomson and Mr Nasr, the Tribunal declined to make a finding that the applicant is not a person of integrity: at [235].

38    Nonetheless, the Tribunal found that the applicant’s conduct in dealing with the nine businesses was “very unsatisfactory…spanning several years”: at [236]. It considered “negligent” her evidence that she “never saw any” proof that Mr Nasr was acting on behalf of the eight businesses related to the ENS nominations, “never asked to see any, and never asked the businesses themselves”—and the Tribunal considered it was not enough for her to assume it was “above board because [Mr] Nasr was a solicitor”: at [238]–[239]. The Tribunal considered that the failure to make “any direct inquiries” to those eight businesses “meant she was recklessly indifferent as to the authenticity of the job offers”, which finding it said was supported by the applicant’s admission that at times she created the position descriptions and set the salaries in them: at [240]. The Tribunal was satisfied that the applicant “at least harboured her own suspicions” that those eight businesses were not seeking to sponsor visas: at [245]. Supporting that finding was an email the applicant sent to an associate of Mr Nasr which forwarded the Department’s refusal of the nomination application for the cosmetics company on the basis of the unrelated position description mentioned above. The Tribunal was satisfied that the applicant was referring to Mr Nasr when she said in the email “Dodgy bastard… all future application [sic] have the position description removed and we do them ourselves”: at [135], [245].

39    For those reasons, when coming to the appropriate sanction under s 303(1) of the Act, the Tribunal noted its conclusion that the applicant’s conduct comprised “‘major’ breaches” within the ‘Complaint Classification Matrix’, in the Department’s document titled ‘Working with the Migration Advice Industry’ to which the Authority directed the Tribunal’s attention: at [228], [241]. It accordingly rejected the applicant’s submission that mere suspension of her licence and compulsory professional development would be appropriate sanctions. It also rejected the submission that fraud perpetrated by Mr Thomson and Mr Nasr vitiated the applicant’s actions, reasoning that separate from any improper or fraudulent conduct by them holding themselves out as intermediary agents of the businesses, the applicant’s “incurious conduct” in not assuring herself that any of the nine businesses were actually seeking to sponsor visa applications was “unsatisfactory conduct as a migration agent”: at [241].

40    The Tribunal concluded that the applicant failed to comply with the Code pursuant to s 303(1)(h) of the Act (noting the typographical error at [247], as explained above), and while no finding was made that she is ‘not a person of integrity’, the Tribunal was satisfied that her unprofessional conduct and the accumulation of breaches over a period of time meant that she is “not a fit and proper person to give immigration assistance” within the meaning of s 303(1)(f): at [247]–[248]. For the same reason it determined that the appropriate sanction is cancellation of the applicant’s registration as a migration agent and removal from the register: at [249].

41    It announced its decision at [250]–[251] as below. While the end date for the cancellation period listed in [251] is 2018, it is apparent from [250], and the context, that this is a typographical error intended to read ‘2028’:

250.    Therefore, noting the Respondent’s concession in relation to paragraph 199 of the delegate’s decision, the Tribunal affirms the decision dated 29 June 2023 that the Applicant’s registration as a migration agent is cancelled under s 303(1)(a) of the Act and that the cancellation is for a period of five years ending on 28 June 2028.

DECISION

251.    The reviewable decision of 29 June 2023 that the Applicant’s registration as a migration agent is cancelled for a period of five years ending on 28 June 2018 [sic] is affirmed.

The nature of the appeal and the alleged errors

42    The applicant’s appeal under s 44 of the former Administrative Appeals Tribunal Act 1975 (Cth) lies on a question of law only. As counsel for the Authority highlighted in oral submissions, as an appeal on a question of law, the error of law is to be assessed within the framework of the factual findings that were actually made by the Tribunal.

43    As the Authority submits, such an appeal can succeed even by establishing a non-jurisdictional error of law: Allan v Transurban City Link Ltd [2001] HCA 58; 208 CLR 167 at [11] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ); Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62], [135] and [202] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Even so, for the Court to set aside the Tribunal’s decision the error of law must be material to the decision of the Tribunal such that the decision in fact made might have been different had the error of law not occurred: Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494 at [40] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). See also 3D Scaffolding Pty Ltd v Federal Commissioner of Taxation [2009] FCAFC 75; 75 ATR 604 at [35] (Emmett, Kenny & McKerracher JJ).

44    As stated, the applicant raises four grounds of appeal in her amended notice of appeal (which mirror, albeit with different numbering, the four questions of law listed in the amended notice):

(1)    The Tribunal erred in law in finding that the applicant was in a migration agent/client contractual relationship with each of the nine businesses.

(2)    The Tribunal erred in finding, in the circumstances, that the applicant was required to take steps to verify the instructions purportedly provided to her by the nine businesses.

(3)    The Tribunal erred in finding that the applicant had breached clauses 2.1, 2.8(a), 2.23 and 5.2 of the Code.

(4)    The Tribunal erred in finding that the applicant had been reckless or complicit in false information about the nine businesses having been provided to the Department of Immigration.

45    Despite the way the four grounds of appeal and questions of law were framed, the parties’ submissions addressed only three distinct errors of law the applicant alleges that the Tribunal made:

(1)    First, in finding that the nine businesses were the ‘clients’ of the applicant.

(2)    Second, in finding that the applicant provided ‘immigration assistance’ to the nine businesses.

(3)    Third, in finding that the applicant was required to but did not verify the instructions provided by Mr Thomson and Mr Nasr.

46    Appeal grounds three and four of the amended notice of appeal were not expressly addressed by the applicant in written or oral submissions. The Authority noted in footnote 14 to its written submissions that it understood ground four, in particular, to be abandoned as the written submissions advanced no argument on it. That contention was not responded to either in the applicant’s written reply submissions, which only addressed the first alleged error, or in oral submissions. In any event, as the arguments put in both oral and written submissions concerned those three alleged errors only, my consideration will address them in turn.

Ground one and the first alleged error

47    The first ground of appeal and first alleged error addressed in submissions was the Tribunal’s findings that the nine businesses were the ‘clients’ of the applicant. It is from that finding that the Tribunal’s findings of the various breaches of the Code with respect to her clients followed.

Definition of ‘client’

48    The applicant argues that for the nine businesses to be clients of the applicant, there had to be a retainer, or contract, between the applicant and each of them, requiring consensus ad idem in accordance with principles of contract law and client-lawyer relationships as well as dictionary definitions of ‘client’ and ‘agrees’. The applicant says that in this case, there was no such agreement because the businesses (or their actual representatives) had no knowledge of the applicant and had never been in contact with her, and there was no two-way communication or agreement. The applicant referred to the decision of Perry J in Kraues v Migration Agents Registration Authority [2018] FCA 664; 158 ALD 493, upheld on appeal in Kraues v Office of Migration Agents Registration Authority [2019] FCAFC 52; 269 FCR 404 (Kraues FCAFC), but said that the issue considered there, being “whether a person can be a ‘client’ even where no immigration assistance has been provided”, was not relevant to the present case.

49    The Authority submits that where a defined term of ‘client’ exists (the applicable definition being in reg 3(1) of the Regulations, extracted above), the general concepts and dictionary definitions relied upon by the applicant are inapt: citing Polo/Lauren Company LP v Ziliani Holdings Pty Ltd [2008] FCAFC 195; 173 FCR 266 at [24] (Black CJ, Jacobson and Perram JJ). Rather, it says, the construction of that term must begin and end with the text of the legislative provision read in context, with preference to the interpretation that would best achieve the purpose of the enactment.

50    The Authority submits that the definition in reg 3(1) does not on its terms require acceptance or mutual agreement, and instead functions solely upon the migration agent agreeing or deciding to provide assistance to a person in unilateral terms to make that person a client of the agent. It points to the lack of language of mutuality of agreement in the definition to suggest that there is no requirement for acceptance, authorisation, or knowledge on the part of the person receiving immigration assistance. It relies on the words “whether or not in writing” to suggest that a formal retainer is not necessary.

51    The Authority contends that its interpretation is consistent with the context and purpose of Pt 3 of the Act, the Regulations and the Code, which it says seek to maintain the integrity of the migration system, regulate migration agents and hold them accountable whenever they purport to act on behalf of others in immigration matters. It says that an interpretation of ‘client’ requiring the consent of the person receiving immigration assistance would allow agents to escape responsibility by claiming a lack of authorisation or reliance on intermediaries.

52    In response the applicant argues that her construction of client would not allow agents in those circumstances to escape responsibility, because even where a registered migration agent could not be liable for breach of the clauses of the Code that rely on the definition of ‘client’ their conduct could be found in breach of clauses that do not rely on the definition of ‘client’, such as cll 2.9 and 2.23 of the Code or s 303(1)(f) of the Act.

Consideration

53    The appropriate enquiry in the construction of delegated legislation (such as the Code) is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [28] (French CJ, Crennan, Kiefel and Keane JJ).

54    I agree with the Authority’s submissions and accept that ‘client’, as it was defined by reg 3(1) of the Regulations at the time of the applicant’s conduct in question, includes persons to whom a registered migration agent agrees to provide immigration assistance even in the absence of a retainer or where the recipient of the assistance has not expressly or impliedly agreed to receive it. This construction is supported by the text of reg 3(1) which refers to a client as “a person to whom the agent agrees to provide” immigration assistance, rather than a person with whom an agreement is made for the provision to the person of immigration assistance. The text on its face frames the agreement for the provision of immigration assistance as emanating from the agent, rather than requiring mutual agreement.

55    I do not think the dictionary definition of ‘agrees’ in the Macquarie Dictionary (or that in the Shorter Oxford Dictionary), to which the applicant refers, necessarily requires “at least two parties in communication with each other” as the applicant submits. While one of the meanings of the definition provided in the Macquarie Dictionary is “to come to one opinion or mind”, others include “to yield assent; consent”, “to accept”, “to determine”. The latter meanings do not inherently require mutual understanding—one person may accept or assent to or determine to embark upon a state of affairs without the mutual agreement of another. In the context in which the word ‘agrees’ appears in reg 3(1) of the Regulations, I do not consider that that word alters the construction I have just adopted.

56    Importantly, as was submitted by the Authority orally, the construction I have adopted is contextually consistent with the way that Pt 3 of the Act, the Regulations and the Code are all concerned with the regulation of the conduct of migration agents rather than what the person receiving their assistance does. It is also consistent with the definition of ‘immigration assistance’ which (as discussed below) is not on its face limited to activity that could only be engaged in with the knowledge or agreement of the person receiving that assistance.

57    This construction also best achieves the purpose of the statutory framework to provide for the regulation of the conduct of migration agents in order to maintain the integrity of the migration system and the migration advice profession, noting the aims of the Code in cll 1.10 and 1.11. In Kraues, Perry J observed that the remedial purpose of Pt 3 of the Act is “to protect aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity”: citing Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272 at 294 (Mason CJ). Her Honour considered it to be consistent with the purposes of the Act (or relevantly Pt 3 of it):

[106]    … being to protect the vulnerable against unscrupulous migration agents and to maintain public confidence in the integrity of migration agents, for a common sense approach to be taken to the question of whether a person is a “client” for the purposes of the Code, having regard to the reality of the relationship between the parties. Any other construction would leave open the door to permitting migration agents to structure their agreements with those seeking their advice so as to avoid the obligations that they would otherwise owe to such persons. In other words, the purposes of the Act suggest an approach to construction of the Code which gives effect to substance over form.

58    I agree with her Honour’s reasoning, and consider that in the present case it supports the construction I have given ‘client’ in reg 3(1). In the present case, while the form of the arrangement was such that the applicant did not have direct contact with the nine businesses on whose behalf she purported to lodge the nomination applications, the substance of the arrangement was that she was acting as though they were her clients. While Kraues involved an agent and client who did have formal retainer agreements in place (Kraues at [110]), the absence of a formal retainer in the present case is only one of the relevant factors, and in any case the definition in reg 3(1) applies whether or not the agent agrees in writing to provide immigration assistance. On appeal, Markovic, Thomas and Thawley JJ in Kraues FCAFC said:

[52]    The purpose of the regime, as the primary judge observed at J[10], is to protect non-citizens from incompetent and unscrupulous advisers: Cunliffe v Commonwealth (1994) 182 CLR 272 (Cunliffe) at 294 (Mason CJ); see also 314 (Brennan J), 333 (Deane J), 358-359 (Dawson J) and 394 (McHugh J).

…

[134]    … The statutory scheme is directed to protection of those who might deal with migration agents. The Code prescribes standards of conduct directed to registered migration agents which is both directly and indirectly related to the giving of immigration assistance…

…

[143]     There is no warrant for concluding that a person can only be a “client” within the meaning of the Code if “immigration assistance” as defined by the Act is in fact given to that person. If that were correct, it would mean that an unscrupulous migration agent could avoid the operation of the scheme set up by the Act by taking money on the false premise that they would later provide immigration assistance, but then render no service. One purpose of the regime has been identified at [52] above. The words of the statute and the Code should receive the interpretation that would best achieve the statutory object: s 15AA of the Acts Interpretation Act 1901 (Cth).

[144]    Even if Mr Kraues were correct and he was merely being retained to give “immigration assistance” at some future time, those who retained him to be available to provide that assistance are appropriately referred to as a “client” within the meaning of the Code. The Code and s 314 are capable of being breached where no “immigration assistance” is in fact given.

The reasoning of the Full Court applies similarly to the issue raised by the present case.

59    I do not accept the applicant’s submission regarding the capacity of cll 2.9 and 2.23 of the Code, and s 303(1)(f) of the Act, to catch any unscrupulous conduct of agents even where, applying the definition of ‘client’ for which she contends, other clauses of the Code could not be breached. Even though cll 2.9 and 2.23 and s 303(1)(f) could potentially apply in such circumstances, that is not a warrant to adopt a construction of ‘client’ that would undermine the ability of the other clauses in the Code to also apply in such circumstances. Further, there may well be circumstances where an agent’s conduct is not so dishonest or so lacking in integrity to warrant a finding of a breach of cl 2.23 of the Code or s 303(1)(f) of the Act, but which would breach other clauses of the Code (such as cll 6.1 and 6.1A) so long as a narrow construction of ‘client’ is not used. Or alternatively, as the Authority submitted orally, there may be circumstances where an agent breached various clauses of the Code in the past (and ought be responsible for those breaches) in respect of persons who on the applicant’s construction would not be ‘clients’, but by the time of the Authority or Tribunal’s decision the agent had substantially reformed such that finding that the person “is not a fit and proper person” under s 303(1)(f) is unable to be made. In either of those circumstances, adopting a narrow construction of the definition of ‘client’ might allow a registered migration agent to avoid responsibility for those breaches and for behaviour that falls short of the standard required of them by the Code. The construction for which the applicant contends accordingly does not facilitate the purpose of the statutory framework.

60    While the Tribunal did not explain in its reasons its construction of the term ‘client’ in reg 3(1) of the Regulations (which, the Authority says, was a consequence of the way arguments were put to the Tribunal on this issue), I am satisfied that the Tribunal did apply the correct construction of the definition of ‘client’ and it was open to it to find (at [214], [217], [241]) that the nine businesses were the clients of the applicant, notwithstanding that there was no agreement from them that they be provided immigration assistance. As the Authority submits, there was no dispute before the Tribunal that the nine nomination applications were lodged with the Department by AVS with the applicant as the appointed migration agent: at [85]. In each of the nomination application forms, the applicant was also listed as the authorised recipient of correspondence in respect of those nine applications. The Tribunal made no error of law.

Whether the client/migration agent relationship is vitiated by fraud

61    The Tribunal made findings that the nine nomination applications were fraudulent, and the applicant before the Tribunal did not dispute this: at [188], [211]–[212], [216]. However, the applicant submits that the fraudulent conduct of Mr Thomson and Mr Nasr “meant that no agreement could possibly be formed in the first place”. It was not clear from the written submissions of the applicant whether she meant by this that the fraud vitiated any client/migration agent relationship that would otherwise be found, or that the arrangement of all instructions being provided by Mr Thomson and Mr Nasr meant that as a practicality there was no direct agreement made between the applicant and the nine businesses. In any event, the Authority responded to this submission as though it was the former, as an alternative argument under ground one.

62    The Authority argues that the applicant’s claims of the fraud precluding her ability to form an agreement to act for the businesses would only be successful if she was neither complicit in the fraud nor indifferent to it: citing Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [56] (Murphy, Mortimer and O’Callaghan JJ) (though noting this decision concerned the distinct issue of whether fraud by a migration agent can invalidate a visa application). The Authority says here, the Tribunal’s findings were to the contrary. The Tribunal had found that she was “recklessly indifferent” to the authenticity of the job offers for the nominated positions, “negligent” for failing to seek any proof of Mr Nasr acting on behalf of the businesses, and at the very best “completely incurious”: at [238]–[240].

63    The Authority submits that because on the Tribunal’s findings the applicant was not the innocent victim of any fraud by Mr Thomson and Mr Nasr, there is no realistic possibility that the Tribunal could have found that the client/migration agent relationship was vitiated by fraud, such that even if an error of law was made it was not material.

Consideration

64    I am satisfied that the Tribunal’s findings were to the effect that the applicant was not, in the relevant sense, an innocent victim of the fraud of Mr Thomson and Mr Nasr. The Tribunal made a direct finding that she was recklessly indifferent to the genuineness of the nominated positions that were the bases for the nine nomination applications. Those findings were open to the Tribunal on the evidence before it, in particular as summarised at [30], [31], [33] and [38] of these reasons above. While the applicant in oral submissions seemed to challenge the merits of some of those factual findings of the Tribunal, the applicant did not establish any error of law in the making of them. In Kaur, the Full Court explained:

[136]    When placed in its proper context, in the proof of fraud, it is apparent that the requisite state of mind for “reckless indifference” is close to intention. Or at the least, it is a state of mind where the indifference or wilful blindness to the truth of what is being said or done is at such a level that a court considers it appropriate to fix a person or conduct with the same consequences as those fixed for an intentionally fraudulent act.

[137]    What these authorities make clear is that the reckless indifference (or wilful blindness) must be as to the truth of the representation, which is said to be deliberately false. The state of mind is thus found to be close to deliberate dishonesty. Once this is understood, the need for a careful finding, based on probative evidence, becomes apparent.

[138]    Other states of mind will not suffice. Helplessness, or a sense of helplessness, is not the same as reckless indifference. Fear of authority is not the same as reckless indifference. Nor is naivety. Nor is ignorance. Nor is want of due care: see SZFDE at [53], and Pyramid Building Society at 194. All of these states of mind need to be carefully distinguished.

[139]    Dependence or reliance is also not the same as reckless indifference. As the Full Court noted in Gill at [50]:

… the Minister ultimately did not contest that s 98 would not apply to a visa applicant who has relied upon a migration agent to fill out a visa application form and the agent perpetrates a fraud on the visa applicant. In our view, that acknowledgment was properly given.

[140]    So too, dependence or reliance on the advice of a migration agent such as Miss Falcon is quite different to being recklessly indifferent to the truth of the claims and material put forward to the Department by S & S Migration as the basis on which a visa should be granted, and is thereby insufficient to be treated as tantamount to deliberate dishonesty.

65    As noted, the context of those reasons in Kaur was different, and the Full Court at [142] placed emphasis on the reasonable reliance which the visa applicant, as a migrant from a non-English speaking background, placed on the third party migration agent. The circumstances of the applicant in the present case placing reliance on the instructions of Mr Thomson and Mr Nasr appear distinguishable, and the Tribunal did not find her reliance on them to be reasonable.

66    I am satisfied that on the basis of the findings made by the Tribunal, in this case the client/migration agent relationship between the applicant and the nine businesses could not have been vitiated by any fraud by Mr Thomson and Mr Nasr.

67    It is therefore not necessary for me to determine whether or not it is possible, as a matter of law, for fraud in other circumstances to vitiate a client/migration agent relationship that would otherwise exist applying the definition of ‘client’ properly construed, for the purposes of determining whether an agent has breached the Code in respect of that client.

68    For those reasons, the applicant has not established the first alleged error or ground of appeal one.

Second Alleged error

69    As extracted above, s 276(2)(a) of the Act provides that for the purposes of Pt 3 of the Act, pursuant to which the Code is made, a person “gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by (a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations”.

70    The Authority submits that the applicant provided ‘immigration assistance’ to the nine businesses relevantly under s 276(2)(a) of the Act, by preparing or helping to prepare a document indicating that the businesses nominated the associated visa applicants for the position underlying the nomination applications. While the nomination applications were prepared and lodged in part by the applicant’s employees of AVS, they were lodged in her name with the applicant as the listed migration agent and authorised recipient of correspondence for the applications, and she conceded before the Tribunal that she “was responsible for immigration assistance given by her staff”: at [85], [99], [226].

71    Despite these concessions before the Tribunal, the applicant submits that the obligations imposed on a migration agent are personal and breaches of obligations by AVS or its staff could “not be sheeted home to the applicant” given that no breaches of Pt 8 of the Code regarding supervision of employees was alleged. She said that the conduct criticised by the Tribunal, such as the provision of the “fraudulently altered” accountant letter for the RSMS application (at [209]–[212]), was conduct of AVS employees not the applicant.

72    The reasons of the Tribunal also record that the applicant before the Tribunal “conceded that immigration assistance was provided” to the businesses: at [190], [195]. The applicant in oral submissions before me appeared to suggest that this concession was only that she provided ‘immigration assistance’ in the layperson’s sense of that term, rather than a concession as to the legal effect of what was done.

73    The applicant submits that the definition of ‘immigration assistance’ was not met by the applicant in respect of the nine businesses, because those nine businesses never asked for, desired, or knew of the assistance being provided. She submits that where there was no contact between the applicant and the nine businesses, there could have been no ‘assistance’ provided to them based on the dictionary definition of that word. The Authority submits, however, that there is nothing in the definition in s 276(2)(a) that requires the person being assisted to know that they were being assisted, and the definition was satisfied upon the applicant (herself or others in her name) preparing documents indicating the nominations.

Consideration

74    I am satisfied that the definition of ‘immigration assistance’ in s 276(2)(a) of the Act does not require knowledge or awareness on the part of the person receiving or purportedly receiving that assistance. There is nothing in the text of the definition to suggest otherwise. For the same reasons of purpose as explained in respect of ground one and the first alleged error, a narrow definition of ‘immigration assistance’ that requires such knowledge or awareness would potentially allow registered migration agents to avoid responsibility for what would otherwise breach the standards in the Code, merely if the recipients of their services are inadequately aware of the work being undertaken. Such a narrow definition does not best achieve the protective purposes of the statutory framework.

75    In light of the concessions made by the applicant before the Tribunal and the evidence before it, it was plainly open to the Tribunal to find, as it did, that the applicant provided ‘immigration assistance’ to the nine businesses notwithstanding that much of the work was undertaken by her employees in her name: at [207]–[208]. There is no error of law in the Tribunal’s consideration in this respect.

Ground Two and the third alleged error

76    The applicant submits that the Tribunal “erred in finding that [she] was required in the circumstances to directly contact the businesses to verify instructions provided by fraudulent third parties”. She submits that under the Code in force at the time of the applicant’s conduct in question there was no express obligation on migration agents “to verify instructions with clients”, such that a failure by the applicant to do so did not amount to a breach of the Code. She says further that no circumstances arose which required the applicant to take steps to contact the nine businesses to verify any apparent instructions (which were received from Mr Thomson and Mr Nasr).

77    The Authority, on the other hand, submits that this alleged error mischaracterises the Tribunal’s reasons, as the Tribunal did not make a finding that the applicant had a legal obligation to verify instructions with her clients. Rather, the Authority says, the Tribunal’s observation (at [245]) that the applicant did not “contact even one of [the nine] businesses to obtain further information, let alone to verify they were wanting to employ an overseas worker” was made in the context of the Tribunal’s analysis regarding the applicant’s state of mind in assessing her conduct overall. It says the Tribunal treated the applicant’s failure to verify the instructions as evidence relevant to her awareness of, or indifference to, the fraud that was claimed to vitiate the client/agent relationship (as discussed above).

78    Counsel for the applicant accepted at the hearing before me that if I am not satisfied that the Tribunal made a finding that the applicant was required to verify instructions, then this ground fails.

Consideration

79    I am satisfied that the Tribunal made no direct findings, either to the effect that the applicant was under a distinct legal obligation to verify the instructions Mr Thomson and Mr Nasr gave her purportedly on behalf of the nine businesses, or that the applicant breached any such specific obligation. Nor do its reasons, read as a whole, suggest that it made those findings. Rather, I accept the Authority’s submissions that the Tribunal considered the absences of any contact by the applicant to any of the nine businesses (aside from the contact to the nominating business for the RSMS application, which received a reply stating the business was unaware of the nomination), or of any attempt by her to obtain or verify instructions from them directly, as relevant to its assessment of her overall conduct.

80    The Tribunal’s treatment of this factor in this way is evidenced in its reasons at [217]–[218], [224], [238]–[240], [245]. These paragraphs precede and inform the Tribunal’s findings at [241] that “the conduct of the Applicant falls within the classification of ‘major’ breaches” in the Complaint Classification Matrix described above, and that her failure to “assur[e] herself that any of these businesses were actually seeking to sponsor visa applicants is unsatisfactory conduct as a migration agent separate from any improper conduct with which [Mr Thomson] and Nasr were engaged”. The ultimate findings made by the Tribunal, that the applicant failed to comply with the Code pursuant to s 303(1)(h) of the Act and is not a fit and proper person to give immigration assistance under s 303(1)(f), were preceded by its statement at [245] that:

Not once did she contact even one of these businesses to obtain other information, let alone to verify they were wanting to employ an overseas worker. Had she done so, the game would have been up. But I am satisfied that Mrs Kearney, even if she did not know for sure that the businesses were not seeking to sponsor visas, at least harboured her own suspicions. …

81    To the extent that the applicant in her submissions challenged certain factual findings by the Tribunal on the evidence before it, those submissions did not allege (and nor is any ground of appeal directed at) illogicality or irrationality in the Tribunal’s findings. Those submissions gave no explanation for how the Tribunal’s treatment of the evidence before it is said to involve an error of law, so it is unnecessary to consider those submissions further for the purpose of this appeal on questions of law.

82    For those reasons, the applicant has not established ground two or the third alleged error.

Disposition

83    For the above reasons, the appeal is dismissed.

84    The applicant is to pay the costs of the first respondent, to be agreed or assessed.

Associate:

Dated:    28 October 2026