AAT Dismissed Mara Case Against Migration Agent
The AAT dismissed a complaint against a migration agent finding that the allegations made by the client were ‘unsubstaniated’. In Miller v MARA [2008] AATA 659 (30.7.2008). The AAT observed:
17. The major problem with this matter was the substantial difference in the evidence of Mr Yang and Mr Miller. It is basically the word of one against the other. It is of some concern that he decision under review is based on the unsubstantiated allegations of Mr Yang against Mr Miller all of which he strenuously denied.
•21. A primary argument of Mr Miller was that the contracts of 30.9.1999 were not complied with by Mr Yang and Mr Miller had no obligation to perform the contracted service and did not do so. It is clear that there is no evidence of the payment by Mr Yang of the RMB2,500 to Mr Miller or the payment of A$30,000 or any other amount to ACA. The only evidence of payment was the $161,100 direct to APC. Mr Yang acknowledged that the contract with ACA did not proceed. The reason for the substantial change in the basis on which Mr Yang made his investment are quite unclear.
•22. The evidence of Mr Miller was clear and unequivocal. While making allowances for possible language difficulties of Mr Yang, his evidence was somewhat vague and, in some instances, clearly contradictory to what he had stated in his written complaints. It is accepted that he lost his investment, was angry and believed that he had been misled. However, it would seem that that anger was directed primarily at Mr C. Armitage and an assumption that, because he met Mr Miller at the same time as Mr Armitage that, somehow (unspecified), Mr Miller should be blamed also. It appears likely that some criticism could be levelled at Mr C Armitage in seeking to attract Chinese potential immigrants by lending his Australian business operations to a subterfuge that such as Mr Yang were legitimate business visa applicants. On the balance of probabilities I am satisfied that Mr Miller did not prepare visa applications for Mr Yang on the reasonable understanding that there was no completed contract to do so. Clearly Ms Li acted for Mr Yang to a much greater depth than he was prepared to admit. The involvement of a Mr Wall and a subsequent migration agent, Mr Peter Chan is unclear. It is relevant to note that, at the times when the 457 and the 845 visa applications were made, Mr Miller was not a registered migration agent. Section 311A of the Act applies only to the provision of migration assistance while registered.
•23. As indicated earlier, this is a case of different versions of accounts given by Mr Miller and Mr Yang. On the basis of the evidence of both I am of the view that, on the balance of probabilities, the version of Mr Miller is the version which should be accepted.
•24. MARA was critical of the fact that Mr Miller did not disclose his investment in Avin Operations Pty Ltd to Mr Yang. The investment was made in July and August 1999. On 3.9.1999 an administrator was appointed to the company, prior to the date of that first meeting with Mr Yang. However, the evidence indicates that, at that time, there was no clear arrangement for Mr Yang to invest in any company in which Mr Armitage was involved. Mr Yang visited and considered several other unrelated businesses. While Avin Operations Pty Ltd was controlled by the Armitage family there is no witness to suggest that it had any direct relationship with ACA. While it may have been desirable for Mr Miller to have disclosed this investment to Mr Yang, I am unable to find that there was any conflict of interest. It is possible to argue that, on the contrary, the knowledge of that investment may have given greater encouragement to Mr Yang to invest in another Armitage company.
•25. Having found that the evidence of Mr Yang was less than satisfactory and unable to be relied upon, I repeat my concern that MARA acted on this unsubstantiated allegation. On balance, and considering all of the evidence, I am satisfied that the decision under review to bar Mr Miller from being registered as a migration agent for 5 years should be set aside.