Australian Immigration Daily News

What type of conduct can land an RMA in hot water with the Office of the Migration Agents Registration Authority (“OMARA”)? 

This is an issue that should be of interest and concern to all RMAs!

Under section 303 of the Migration Act, OMARA has the power to caution an RMA or to suspend or even cancel her or his registration. This power can be exercised when an agent’s application for registration is known to be false or misleading in a material particular; the agent becomes bankrupt; or the OMARA finds that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. 

A recent decision by the OMARA in the case of Minkai Huang provides a practical example of how the OMARA’s powers of cancellation may be exercised. 

This decision also reinforces the timeless lesson of the Watergate scandal involving former US President Richard Nixon (1969 – 1974) that the “cover-up” is often worse than the original “crime”. (I am not saying one way or another whether I am old enough to remember “Watergate” from my own personal knowledge – let’s just say for the moment that as a dual Australian – US citizen, “I have heard about it”!!!)

Not only that, but the case also illustrates a concept that is well-known to RMAs, namely that providing false information on an application of any kind made to the Commonwealth government can be absolutely fatal to the prospects of the application.

The circumstances of the Huang case were that the agent was a New Zealand legal practitioner. He was originally registered as an RMA with OMARA in May 2012. In December 2013, he was sentenced in New Zealand for a theft offence arising from his dealings with an immigration client. Although the offence carried a possible penalty of 7 years imprisonment under New Zealand law, the actual sentence that was imposed was that the RMA was required to perform 100 hours of community service work.  The disciplinary decision of the OMARA also recites that the RMA repaid the fee that was given to him by the client “in full”.  So one might speculate, purely on the basis of the information provided by the OMARA’s written decision, that perhaps the client may have been “made whole” from any financial loss that she/he may have suffered as a result of the RMA's conduct.

The disciplinary proceedings that were brought against Huang were not limited to those brought by OMARA: In November 2014, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal ordered that he be “struck off” the “roll” of barristers and solicitors (thereby putting to an end his ability to work as a lawyer).

The OMARA became aware that Huang had been struck off as a lawyer not through Huang himself, but by receiving notification from the New Zealand Immigration Advisers Authority. It then opened an investigation concerning whether disciplinary action should be taken against the RMA.

The OMARA's investigation revealed that the agent had made two applications for renewal of his registration as an RMA after the date that he was sentenced for the theft offence, in March 2014 and in March 2015. The RMA did not declare, on either of these applications, that he had had a finding of guilt made against him for a criminal conviction; that he was not aware of any finding, conduct or event that would affect his fitness and propriety to provide immigration assistance, or his integrity; and that all the statements that he had made in his renewal application were complete, correct and up to date in every detail. Also, in the 2015 renewal application, the RMA had falsely stated that he had not been the subject of an investigation by a professional association, and that he had not had disciplinary action taken against him (when in fact, well before the time of this renewal application he had been struck off the roll of legal practitioners in New Zealand).

In addition to providing false information on his applications for renewal of his registration, the RMA had also failed to respond to two statutory notices that were issued by OMARA relating to the criminal conviction in New Zealand and to the disciplinary investigation which had been undertaken against him by the New Zealand Law Society. 

In arriving at a conclusion to cancel the RMA’s registration, the OMARA placed significant emphasis on the fact that Huang had made multiple false declarations in his applications for renewal of the registration (knowing that had he truthfully declared that he had been convicted of theft and that he had been struck off the lawyers’ roll in New Zealand his renewal applications would not be approved) and that he had demonstrated a disregard for OMARA’s regulatory authority by not responding to the statutory notices. Taken together with the evidence of the underlying conviction for theft, this conduct was enough to prompt OMARA to conclude that the RMA was neither a person of integrity or someone who was a fit and proper person to provide immigration assistance.

One might wonder whether the fact that the RMA had been convicted of theft in connection with his dealings with a client would have been sufficient, in and of itself, to cause the OMARA to cancel his registration, or whether the fact that the RMA had pleaded guilty to the offence, performed his community service and paid restitution to the client would have given the OMARA sufficient justification for a lesser sanction, such as a period of suspension rather than permanent cancellation of the RMA’s registration.  One could speculate that, most likely, the conviction alone would still have been enough to lead to the RMA’s having his registration cancelled.

However, there is one thing that requires no speculation: it is certainly the case that the RMA’s failure to disclose the conviction and the subsequent disciplinary proceedings by the New Zealand authorities only “added fuel to the fire” and gave the OMARA further substantial grounds to impose a significant sanction that effectively ended the RMA’s career in the Australian migration industry.

If Richard Nixon and his fellow Watergate conspirators were still around, perhaps they would advise that, just as crime does not pay, efforts to conceal the truth from OMARA does not pay either, and if anything, are likely to blow up in one’s face!!!

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837