You are a solicitor working in a small firm in South Brisbane. On 19 October you had a meeting with a client, Ms Patti Smith and learned the following details about her situation:

Relevant Facts

Patti has been registered as a migration agent, pursuant to s289 of the Migration Act 1958 (Cth) ('the Act') since June 2010. She has practised as a migration agent since that date and has completed 10 points of professional development each year as required under the Migration Agents Regulations 1998 (Cth).

On 8 February 2022, Patti met with Mr Luiz Souza, a Brazilian citizen wishing to remain in Australia when his tourist visa was due to expire on 30 June 2022. During this meeting Luiz mentioned to Patti that he had helped to organise a number of anti-government protests during 2021 in the Brazilian city of Porto Alegre, and that he had heard rumours he was on a Brazilian government 'blacklist' of activists.

Patti told you that during the February meeting, she informed Luiz of the possibility of applying for a Protection Visa and that the client agreed that this was the best approach to take. Patti says that Luiz completed a significant portion of the application form, including the section that set out the reasons for the application.

Following this consultation, Patti lodged a Protection Visa application on behalf of Luiz with the Department of Home Affairs on 16 February 2022. She charged Luiz $1750 for her services.

On 28 June, Luiz was notified that his Protection Visa application had been rejected. Patti claims that she advised Luiz in a telephone conversation that day, that his case was very weak and there was very little chance of success in an appeal against this decision, but that nevertheless he had a right to lodge an application for an appeal to the Administrative Appeals Tribunal.

On 17 October, Patti received an email with an attached Notice of Decision from the Department of Home Affairs, which refers to a complaint made by Luiz about Patti's practice as a migration agent. The notice informed Patti of the decision to suspend her registration as a migration agent for a period of six years. [Patti gave you a copy of the decision - Attachment 1.]

Patti disputes the assertions in the notice from the Department that she lodged an application for a Protection Visa for Luiz without his consent and that she encouraged him to lodge an appeal with the Administrative Appeals Tribunal.

In response to a question about her background, Patti reveals that she has been involved in campaigns supporting the rights of refugees and asylum-seekers since the early 2000s and is a member of the Brisbane branch of the Refugee Action Cooperative (RAC).

Patti has helped to draft media releases for RAC and has been interviewed several times by radio and television journalists about the RAC's opposition to the Commonwealth Government's policy of detaining asylum seekers. In April 2002 when she was a university student, she was arrested and charged with hindering

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police in the execution of their duty during a large demonstration in support of immigration detainees outside the Woomera Immigration Processing Centre in South Australia. The charges were later dropped.

Patti was accompanied at the meeting with you on 19 October by a representative of the Refugee Action Cooperative. RAC advocates for the rights of refugees and asylum-seekers and challenges Australian government policy and legislation which affects the rights of these people. RAC regularly makes representations to members of Parliament on these issues and runs public campaigns for law reform. It receives no government funding.

Patti strenuously denies the allegations that have been made against her and is convinced that she has always acted in accordance with the Code of Conduct for Migration Agents. She is very upset that the Department has taken disciplinary action against her and that she now faces a long period during which she cannot practice as a migration agent. She would like to challenge this decision and has asked you for advice on what avenues are available to her.

ATTACHMENT 1

Notice of Decision In relation to the Registration of Patricia Lee Smith

Section 305Migration Act 1958(Cth)

The Office of the Migration Agents Registration Authority (OMARA) is given powers to take disciplinary action against registered migration agents pursuant to section 303 of theMigration Act 1958(Cth). I am the delegate of OMARA and I have determined that there are grounds to take disciplinary action against Ms Patricia Smith('the Agent')pursuant to this section. I have decided to impose the following penalties on the Agent.

Penalties

1.TheAgent'sregistrationasamigrationagentwillbesuspendedforaperiodofsix years or until the following conditions are satisfied:

After a minimum period of three years from the date that the Agent was notified of the Authority's decision,

a) the Agent convinces the Authority that she is a person of integrity and a fit and proper person to give immigration assistance, and

b) the Agent completes one of the following: i) 30core points of Continuing Professional Development of which

10 points must be in the Refugee and Humanitarian area; or

ii) the Migration Professional Knowledge Entry Examination.

2. TheAgentisliabletopaytheAuthorityapenaltyamountof$5000by14April2023.

Reasons

This decision is based on the Authority's evaluation of the evidence before it.

1. The Agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance, pursuant to section 303(1)(f) of the Act. This determination is based on the following findings of fact:

a) On 8 February 2022 Mr Luiz Souza visited the Agent's office to inquire about

applying for a Partner Visa (Temporary).

b) Following this meeting, the Agent prepared and lodged a vexatious application

for a Protection Visa on behalf of Mr Souza on 16 February 2022, without his

proper authority and without explaining the nature of the visa being lodged.

c) Based on expert evidence of handwriting on the application form which has been made available to the Authority, it has been determined that no part of the

application form was completed by Mr Souza.

d) On 28 June 2022, Mr Souza notified the Agent of the Department's decision to

reject the Protection Visa application. The Agent then encouraged Mr Souza to submit an application for review of this decision to the Administrative Appeals Tribunal.

e) On 12 July 2022, the Agent advised Mr Souza that pursuing such an appeal was 'pointless' and that Mr Souza should apply for a Partner Visa (Temporary).

The Agent has previously been convicted of a criminal offence under section 6 of the Summary Offences Act 1953 (SA) relating to her involvement in political activities directed towards the undermining Australia's system of migration law. This incident is indicative of the Agent's long record of behaviour which is inconsistent with a commitment to the implementation of the Australian Government's strong border protection policies. The expectations on migration agents in this regard will be emphasised in the forthcoming White Paper on reforming the registration system.

2. The Agent's practice as a migration agent does not meet current industry standards, pursuant to section 303(1)(h) of the Act. This determination is based on the following findings of fact:

a) The Agent failed to provide accurate and timely advice in contravention of

clause 2.3 of the Code of Conduct.

b) The Agent encouraged the lodgement of a vexatious or grossly unfounded

application to the Administrative Appeals Tribunal in contravention of

clause 2.17 of the Code of Conduct.

c) TheAgenthasbeenthesubjectofnumerouscomplaintsfromclientsduringthe

past three years and has thereby failed to take all reasonable steps to maintain the reputation and integrity of the migration industry in contravention of clause 2.23 of the Code of Conduct.

d) The Agent has failed to complete more than the annual minimum of 10 points of continuing professional development as recommended by the Authority's Professional Development for Registered Migration Agents Policy

Right of Appeal

In accordance with provisions of the Migration Act 1958, this decision is final and conclusive.

N L Farage

Dr Nigella Farage Professional Standards Officer Immigration Integrity and Assurance Department of Home Affairs

The Office of the Migration Agents Registration Authority (OMARA) is a section within the Department of Home Affairs. Through your preliminary research you have discovered that OMARA has responsibility for investigating complaints against registered migration agents and undertaking disciplinary action. In performing these roles OMARA implements the Code of Conduct for Registered Migration Agents. The Code of Conduct is provided for in the Migration Act 1958 (Cth), and its provisions are set out in Schedule 2 of the Migration Agents Regulations 1998 (Cth). You have identified the following provisions of the Code:

CODE OF CONDUCT FOR REGISTERED MIGRATION AGENTS (2021)

2.3 A registered migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.

2.4 A migration agent must have due regard to a client's dependence on the agent's knowledge and experience.

2.6 To the extent that a registered migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she must be frank and candid about the prospects of success when assessing a client's request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.

2.7 A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.

2.17 A migration agent must not encourage the lodgement of vexatious or grossly unfounded applications under the Migration Act or Migration Regulations, such as applications that have no hope of success.

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

----- You have also uncovered this recent press release by the Minister for Home Affairs

Office of the Minister for Home Affairs Media Release 12 August 2022

PROTECTING THE INTEGRITY OF AUSTRALIA'S MIGRATION SYSTEM

The Department of Home Affairs reaffirms the Australian Government's commitment to its strong border protection policies. Today, the Minister, Mr Oswald Mosley said:

The Australian public should remain confident that their Government will ensure that everyone working within the nation's migration system is fully committed to the implementation of the Government's strong border protection policies. This commitment will be further demonstrated in the next few months through theGovernment's forthcoming White Paper on reforming the registration system for migration agents.

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Relevant Legislation

You have obtained copies of the following statutory provisions:

MIGRATION ACT 1958 (Cth)

4 Object of Act

(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

(4) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.

(5) To advance its object, the Act provides for mechanisms to ensure that the migration system conforms to the highest standards of decision-making practice.

PART 3--MIGRATION AGENTS AND IMMIGRATION ASSISTANCE

Division 3--Registration of migration agents

303 Discipliningregisteredmigrationagents

(1) The Migration Agents Registration Authority may: (a) cancel the registration of a registered 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:

(d) the agent's application for registration was known by the agent to be false or misleading in a material particular;

(e) the agent becomes bankrupt; or

(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.

(2) In considering whether an agent is a fit and proper person or a person of integrity, the Migration Agents Registration Authority must determine:

(a) the extent of the agent's knowledge of migration procedure; and (b) whether the agent has been found guilty of a criminal offence which is

relevant to their fitness to provide immigration assistance; and (c) whether the agent has been the subject of any inquiry or investigation that

is relevant to their fitness to provide immigration assistance.

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304 Period of suspension

(1) If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:

(a) set a period of suspension of not more than 5 years; or

(b) set a condition or conditions for the lifting of the suspension. (2) If 2 or more conditions are set under paragraph (1)(b), one of them may be that at

least a set period of suspension has ended.

305 Notice of disciplinary decision

(1) The Migration Agents Registration Authority must give a registered migration agent written notice of a decision made under section 303 in relation to the agent.

(2) The notice must set out the reasons for the decision and a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.

(3) The decision takes effect at the time the agent is given written notice of it.

306 Review by the Administrative Appeals Tribunal

Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.

314 Code of Conduct for migration agents

(1) The regulations may prescribe a Code of Conduct for migration agents.

(2) A registered migration agent must conduct himself or herself in accordance with

the prescribed Code of Conduct.

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Question

1. Assuming judicial review is available, what kinds of arguments might be made through that avenue, in these circumstances? [30 marks]