IMMIGRATION - Migration Agent - breaches of the code of conduct - caution issued - subclass 457 visa - business sponsor - approved nomination - withdrawal of a nomination - claimed conflict of interest - immigration assistance - immigration legal assistance - misleading information provided to the department - agency and fiduciary duties - sub-agency - reputation and integrity of the migration agent advice profession - fees and charges obligations - failure to maintain proper records - client's dependence on the agent's knowledge and experience - obligation to provide information to Immigration when certain events occur - sponsorship undertakings

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Migration Act 1958 (Cth) ss 276, 277, 303, 309, 313, 314

Migration Agents Regulations 1998 (Cth)

AWB Ltd v Cole and Another [2006] FCA 571; (2006) 152 FCR 382

Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41

Department of Immigration and Citizenship, Temporary work (skilled) (subclass 457) visa (Booklet 9, 1154, 11/12)

F.M.B Reynolds, Bowstead & Reynolds on Agency (18th ed, Sweet & Maxwell, 2006)

Migration Agents Registration Authority, Code of Conduct for Registered Migration Agents (1 July 2012)

1. Mr Ziran Guo, a legal practitioner, is a registered migration agent. He was first registered on 24 June 2005 under the business name BK Migration Pty Ltd. He trades under the name Australian Career Migration Lawyers.
2. On 18 May 2010 the Department of Immigration and Citizenship (DIAC) made a complaint to the Migration Agents Registration Authority (MARA) regarding Mr Guo's conduct. The complaint arose out of migration work performed by Mr Guo for Mr S Wu, a Peoples Republic of China citizen, and Lionel Moore Trailers Pty Ltd (LMT). Mr Wu was an applicant for a 457 visa and was sponsored to be employed by LMT. Neither Mr Wu nor Mr Shayne Moore (Mr Moore), a joint managing director of LMT, lodged a complaint.
3. On 11 April 2012 a Director Professional Standards and Integrity from the office of MARA made a decision finding that Mr Guo had breached a number of clauses under the Code of Conduct for registered migration agents. MARA decided to issue Mr Guo with a caution pursuant to s. 303 (1)(c) of the Migration Act 1958 (the Migration Act). On

2 May 2012 Mr Guo lodged an application with the Tribunal seeking review of the Director's decision. 4. The issues I must determine in this case are: * (a) whether Mr Guo has breached clauses 2.1, 2.1B, 2.4, 2.9, 2.19, 2.23, 5.2 and 6.1 of the migration agents Code of Conduct; * (b) if I were to find that Mr Guo has breached any of the above clauses of the Code of Conduct, whether I should vary the decision to issue a caution so that Mr Guo's registration is suspended for a period of at least 12 months and also until he has completed appropriate training to address the issues which gave rise to the breaches; and * (c) alternatively, whether the decision to caution Mr Guo should be affirmed.

1. LMT is a manufacturing business involved in the construction of semi-trailers, dogs and dollies, and also reconditioning and dealing in second-hand parts. It employs local staff as well as staff obtained under the subclass 457 temporary business visa program. As is explained in a DIAC document dealing with subclass 457 visas, there are three processing stages in sponsoring an employee from overseas under that program. Under the first stage, the employer applies for approval as a standard business sponsor. The second stage requires the employer to nominate an occupation for a prospective or existing subclass 457 visa holder. The information which must be provided in this stage includes the identity of the person who will work in the nominated occupation. The final stage involves the person nominated by the employer to work in the nominated occupation applying for the subclass 457 visa. It involves background checks regarding the skills and work experience of the nominated applicant as well as matters such as health and character.
2. LMT entered its first sponsorship agreement under the subclass 457 visa program in May 2005. It did so without the assistance of a migration agent.
3. On 29 June 2007 LMT lodged another subclass 457 sponsorship agreement for approval. On this occasion, LMT engaged the services of Australian Career Migration Lawyers (Mr Guo) to assist with the sponsorship approval and the nomination of skilled personnel. Mr Guo confirmed his instructions to act for LMT in a letter dated 7 June 2007.
4. The third stage in sponsoring an employee from overseas under the subclass 457 visa program involves assisting that person in making a visa application. In addition to having the requisite skills and job experience required for the nominated occupation, an applicant nevertheless needs to meet all of the requirements which apply to any visa applicant. Mr Wu was identified by LMT as a prospective subclass 457 visa holder, being one of 12 possible welders and fabricators required. Mr Guo applied for a subclass 457 visa on his behalf. Mr Wu's nomination as a 457 visa holder was approved by DIAC on 8 October 2007.
5. According to LMT, it lodged a third application for sponsorship and nomination of overseas workers under the subclass 457 visa program on 11 December 2007 seeking a further 20 welders and metal fabricators. On this occasion, LMT did not use Mr Guo to assist with processing the sponsorship agreement. Apparently LMT experienced an economic downturn in late 2007 and 2008 and needed to cut back on its employed staff. At that time, some six applicants nominated by Mr Guo were waiting for their 457 visas. According to Mr Moore, who was then the joint managing director of LMT, on 1 April 2008 LMT notified Mr Guo that it would not require any more employees at that time. In fact, Mr Moore testified that LMT ceased Mr Guo's authority to act on its behalf in about April 2008 and engaged the services of a new migration agent, a Mr Lim.
6. Despite Mr Guo no longer acting for LMT, according to Mr Moore, on 24 February 2009 Mr Guo e-mailed him stating that Mr Wu was granted his 457 visa some six months previously and asked Mr Moore to reconsider engaging him. Mr Moore declined.
7. In a notice given under s. 309 (2) of the Migration Act on 17 November 2011, MARA stated that despite being instructed by LMT that the visa application for Mr Wu should not continue, Mr Guo failed to advise DIAC and instead continued to represent Mr Wu and progress his visa application. The notice also stated that after LMT instructed Mr Guo that it no longer wished to sponsor Mr Wu, he provided inaccurate and misleading information to DIAC by claiming that Mr Wu continued to be sponsored by LMT. It claimed that between 7 September 2007 and 26 May 2008 Mr Guo continued to correspond with DIAC asking for updates on Mr Wu's visa processing and responding to the DIAC's requests for information.
8. As a result of the information provided by Mr Guo to DIAC, Mr Wu's 457 visa application was granted on 30 June 2008. Apparently, on 29 April 2010 Mr Wu approached DIAC to have his visa evidenced (I presume that means stamped in his passport). When DIAC contacted LMT to verify the sponsorship arrangement, LMT advised DIAC that it had ceased sponsoring Mr Wu and that it had instructed Mr Guo to discontinue Mr Wu's visa application in early 2008. On 5 May 2010 Mr Wu again approached DIAC to have his visa evidenced. He advised DIAC that he was not informed of his visa grant in 2008 and he was misled in regards to his visa status. DIAC cancelled Mr Wu's subclass 457 visa on 5 May 2010.

1. Section 314 of the Migration Act provides that the Regulations may prescribe a Code of Conduct for migration agents. The clauses in the Code of Conduct, located in Schedule 2 of the Migration Agents Regulations 1998 (the Regulations), which MARA claims Mr Guo breached, provide as follows:

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.

However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.

2.1A A registered migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:

(a) the agent has had previous dealings with the person, or intends to assist the person, in the agent's capacity as a marriage celebrant;

(c) the agent is, or intends to be, involved with the person in a business activity that is relevant to the assessment of the visa application or cancellation review application;

(d) there is any other interest of the agent that would affect the legitimate interests of the client.

2.1B If it becomes apparent that a registered migration agent has a conflict of interest mentioned in clause 2.1A in relation to a client, the agent must, as soon as practicable taking into account the needs of the client, but in any case within 14 days:

(a) tell the client about the conflict of interest; and

(b) advise the client that, under the Code, the agent can no longer act for the client; and

(c) advise the client about appointing another registered migration agent; and

(d) cease to deal with the client in the agent's capacity as registered migration agent.

...

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

...

2.9 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.

...

2.19 Subject to a client's instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all the facts against the relevant criteria. For example, a registered migration agent must avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.

...

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

(d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of the change occurring.

...

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.

1. Mr Moore provided DIAC with a witness statement which was signed on 22 June 2010. Mr Moore testified that in June 2007 LMT lodged its second subclass 457 sponsorship agreement for approval. He said that he made initial contact with Mr Guo over the telephone and met him a few weeks afterwards.
2. I had in evidence a letter from Mr Guo to Mr Lionel Moore of LMT dated 7 June 2007 in which Mr Guo confirmed instructions to act for LMT regarding Sponsorship and Nomination of skilled personnel (welders) under the Subclass 457 Visa Scheme. In describing the service to be provided, Mr Guo said: preparation of documents and forms in support of the applications; drafting letters to the Department of Immigration and Multicultural Affairs (DIMIA) (which later became DIAC) where appropriate; drafting legal submission to DIMIA and advising in relation to any aspect of the application process. It is clear from that letter that Mr Guo undertook to prepare and lodge sponsorship and nomination applications for the subclass 457 visa and to conduct other matters related to that application. It does not go any further. Mr Lionel Moore signed the document and dated it 28 June 2007 acknowledging its receipt. He also signed a statement declaring that he understood the arrangement and the terms set out in the letter. Mr Lionel Moore signed that letter on behalf of LMT.
3. In cross-examination Mr Moore agreed that the letter of 7 June 2007 set out the terms of the agreement between Mr Guo and LMT. When it was put to Mr Moore that Mr Guo was retained to process the sponsorship and to lodge and process the sponsorship applications and nomination applications, Mr Moore answered: Right. He also answered Yes when asked whether he was satisfied that the work was completed in that the sponsorship and nomination applications were approved. Mr Moore also agreed that he was aware he could withdraw the sponsorship of any sponsored worker.
4. In response to an e-mail from Mr Moore dated 10 July 2007 requesting information about the 457 visa applications, Mr Guo set out in some detail in an e-mail dated 14 July 2007 the matters which needed to be addressed. In that e-mail Mr Guo said that he had lodged 10 nominations on behalf of LMT, half of the applicants making applications being offshore and the other half were onshore. Mr Moore testified that on 27 August 2007 LMT's business sponsorship was approved by DIAC. He said that the sponsorship agreement was for 12 positions. Mr Moore also testified that on 11 December 2007 LMT lodged another subclass 457 sponsorship agreement for approval with DIAC. This application was not made by Mr Guo but by another migration agent, Mr Lim. In cross-examination Mr Moore agreed that he had not told Mr Guo about this application.
5. MARA submitted that LMT continued to be a client of Mr Guo with respect to the nomination application at least up until the start of April 2008. With respect, I disagree.
6. It is clear that the process of obtaining employees under the subclass 457 visa scheme involves three distinct stages: application for approval as a standard business sponsor; identification of the position to be filled by an overseas skilled worker which includes identifying the market salary rate for the position, the rate to be paid to the prospective employee and the name of the prospective overseas employee; and finally, making an application for the subclass 457 visa in respect of each approved nomination. However, it should be clear that only the first two stages involve the migration agent providing services to the intending employer. The remaining step in the process is for the prospective employee to make an application for a subclass 457 visa. Usually, this is done through a migration agent in Australia and, as I understand it, quite often through an agent in the country where the prospective employee resides. Furthermore, there is considerable logic in the migration agent who acted for the employer subsequently making the visa application on behalf of the prospective employee. In doing so, the migration agent is clearly acting for the visa applicant and not the employer.
7. Mr Guo's oral evidence was that in October 2007 the nominations for LMT had been approved. He said that he closed that file on or soon after 8 October 2007. In cross-examination Mr Guo was asked whether he remained in a client relationship with LMT after October 2007. He answered that he remained in a client relationship with LMT regarding other cases. He pointed out that he had been asked to look at another case which involved an application for permanent residency but he was no longer acting for LMT in relation to the sponsorship and nomination application. Mr Guo also explained that in a statutory declaration which he made on 22 December 2011, when he said he was no longer acting as agent for LMT as of April 2008, that was a reference to acting for LMT in any capacity for any file as at that date. It was not a reference to the sponsorship and nomination application made in June 2007.
8. It was then put to Mr Guo that prior to April 2008, he was in a position where he could have acted for LMT to withdraw the nomination of Mr Wu. He answered: Between the time the file was closed and the time that all relationship ceased, that is between October 2007 and April 2008, 2007 being the time the file was closed and 2008 being all matters in relation to LMT were transferred to the new agent, if I was asked by LMT to do something on their behalf in relation to the nomination I would tell them to do it themselves. When asked whether he had told Mr Moore that, he said: ... specifically in those words, no.
9. Mr W Sharpe, a solicitor who appeared on behalf of MARA, questioned Mr Guo about the extent of his instructions to act for LMT. Specifically, Mr Sharpe asked Mr Guo to point out in the letter of 7 June 2007 accepting instructions from LMT that he would cease to act when the nomination was actually granted. Mr Guo responded by saying that the retainer letter was a standard letter which was borrowed from a large sized law firm at that time. He agreed it did not say when the service would end but suggested that by implication, it would end at some time. Although agreeing that there were no words of limitation set out in that letter accepting the instructions of LMT, Mr Guo pointed out that the application was in respect of a nomination application which had ceased, being approved in October 2007.
10. With respect to Mr Sharpe, the letter accepting the instructions of LMT must mean what is said in the letter. The heading to the letter refers to sponsorship and nomination of skilled personnel under the subclass 457 visa scheme. The first sentence then states: Pursuant to our early discussion, I write to confirm your instructions for us to act for you concerning the above applications. Plainly, what is meant by that sentence is that Mr Guo agreed to act for LMT in respect of the sponsorship and nomination applications. The remainder of the letter must be read in that context. Therefore, where amongst the services set out to be provided by Mr Guo it is stated perusing instructions and documents; corresponding on LMT's behalf with the relevant Government Department; reviewing documents and preparing ancillary documents; and advising of the progress of the matter on a regular basis, those activities must be in relation to the sponsorship and nomination applications. They cannot have a wider application as was submitted by Mr Sharpe.
11. Mr Sharpe also referred Mr Guo to a document described as a Form 956 lodged with DIAC which bears the heading Appointment of a migration agent. Mr Sharpe asked Mr Guo in cross-examination whether that document was used to appoint Mr Guo as a migration agent for LMT. He said that this was one of the documents and that the other or was the retainer letter of 7 June 2007. Mr Guo was then referred to the response to a question on that form which asked whether the migration agent was authorised to act on LMT's behalf and receive written communications in relation to all matters or a specific matter only, where Mr Guo had ticked the box referring to all matters. Having ticked that box, it was put to Mr Guo that he was appointed to act on behalf of LMT in relation to all matters. Mr Guo responded by saying that the form was a standard one. He said the explanation for ticking the all matters box was that if he ticked a box relating only to a specific matter, and queries arose in a related matter, then he was not permitted to make representations or submissions in relation to that related matter. When I asked Mr Guo what he understood was the purpose of that form, he responded by saying it protected the confidentiality of clients, so that unless the Form 956 permitted disclosure about a specific matter to the migration agent, the migration agent could not query a client's progress of the application and it also ensured that correspondence in relation to all matters was sent to the registered migration agent.
12. Mr Sharpe submitted that the Form 956 was actually a document evidencing the appointment of a migration agent to act on behalf of a client in respect of the matters described on that form. That, according to Mr Sharpe, corresponds with the title to the form which is Appointment of a migration agent. With respect to Mr Sharpe, the entries under Part E of the form do not go that far. The entry made under Part E simply authorises DIAC to send written communications in relation to the matters described to the named migration agent. Authority to send those communications to the migration agent was signed off by LMT and Mr Moore under Part F. Whether the migration agent in fact has instructions to act on behalf of those persons in relation to the matters described can only be determined by the agreement between the migration agent and his or her client. Furthermore, assuming that LMT and Mr Moore would not have signed that document without having reached agreement for Mr Guo to act in some capacity, the services provided by Mr Guo must surely be subject to the agreement he reached with his client. While he may well have authority to act in all matters as is described on the Form 956, the nature and extent of his authority to act is not set out on that form. That must be the subject of an agreement between the migration agent and his client.
13. In my opinion, the evidence discloses that Mr Guo was engaged to assist LMT in respect of applying for approval as a standard business sponsor and for making a nomination application in respect of an occupation (welder) and identifying the persons nominated to work in that occupation. An e-mail from DIAC dated 27 August 2007 states that on that date, DIAC had approved LMT's sponsorship and 12 nominations. That e-mail also states that approval of the sponsorship by LMT remained in effect until the earliest of:
    • (a) the number of subclass 457 visas granted to employees equals maximum number of approved nominations (12); or
    • (b) two years from the date of sponsorship approval; or
    • (c) cancellation of the sponsorship.
14. The letter goes on to state that: Approved business sponsors may now lodge a nomination application via the Internet or by completing the relevant parts of form 1196, and lodging the nomination application with this office. A separate nomination form is required for each position to be filled. I understand that to mean that a person nominated under a sponsorship agreement may lodge an application for a 457 visa, which is stage three of the process. That application is completed on a form 1066 Application for a Subclass 457 - Temporary Work (Skilled) Visa or 1066.
15. In an e-mail dated 14 February 2008 Mr Guo said to Mr Moore that he had sponsorship approval for 12 nominees. He identified 4 welders who had already obtained their 457 visas. He also said that he had 6 more welders from China with visas pending. One of the six referred to by Mr Guo was Mr Wu, who Mr Guo said had a hiccup with background checks and that he was likely to be dropped_._ Mr Guo's reference to background checks appears to be a reference to a skills and competence check. In an earlier part of the e-mail of 14 February 2008 Mr Guo referred to 2 others of the 6 identified welders with visas pending as having had their background checked and the overseas post (I presume DIAC) thought their skills in welding were proficient but basic. In summary, Mr Guo said that 2 welders were able to come to Australia within 2 to 3 weeks if they were supported by LMT as they were found to have basic welding skills. He said that three were awaiting background checks and the case officer indicated that results should be available early the following week.
16. This evidence discloses that Mr Guo had, as at 8 October 2007, completed the service he described in his letter of appointment dated 7 June 2007. In fact, in a further e-mail from Mr Guo to Mr Moore dated 31 March 2008 Mr Guo informed Mr Moore that he had a visa grant for one of the welders whose name appeared in the previous e-mail of

14 February 2008 and was described as having his visa pending. He also reported that some of the background checks of welders in China were met with tougher criteria and that DIAC did not issue favourable reports regarding those welders. He then said: We are still keen to give it a shot to push through their visa grant. I will be forwarding to you a copy of our [blank] to DIAC and a draft supporting letter for your review and Signature if you would support their coming, which would be greatly appreciated. Mr Moore responded by e-mail on 1 April 2008 when he said: We would like you to process ... [Mr S] LIN but after him we are looking to restrict our workforce to a maximum number so unless other employees leave we will not require any more at this point in time.... Mr Lin was one of the six welders referred to in Mr Guo's e-mail of 14 February 2008. 17. I find that the evidence discloses Mr Guo acted for LMT in relation to the sponsorship and nomination applications from the time of receiving instructions up until 8 October 2007 when the nomination for Mr Wu was approved by DIAC. After that time, Mr Guo was plainly acting for the nominated prospective employees for the purposes of having issued to them a 457 visa. I also accept that Mr Guo continued to act for LMT in another unrelated matter after 8 October 2007. There was evidence that Mr Guo was involved in the permanent residency application for Mr Li.

1. Mr Guo's evidence was that in obtaining suitable applicants for the positions required by LMT, he used the services of an agent in China. He said that agent went under the name Hoi King but was referred to as Hisense. Mr Guo testified that he had an agreement with Hisense whereby he charged $2200 to assist potential employees lodge their applications for the 457 visa. He said that these applicants engaged Hisense which then used Mr Guo to make their visa applications. In this particular case, some of the nominated workers were not overseas but were in Melbourne. They wanted to change employers or their employment had been terminated. Apparently, under the subclass 457 visa scheme, employees in Australia under that scheme whose employment is terminated within the four year period of the validity of the visa, have 28 days in which to find a new employer. Those visas are not normally cancelled. According to Mr Guo, generally speaking, DIAC approves the nominations of workers already employed in Australia.
2. In his written statement, Mr Moore said that due to the economic downturn experienced during late 2007 and early 2008, LMT realised that it needed to cease its recruitment drive and the processing of any further 457 visa holders. Mr Moore said that he discussed this with Mr Guo in around April 2008 because at that time Mr Guo remained involved with the visa applications associated with the sponsorship agreement. He also acknowledged receipt of Mr Guo's e-mail of 14 February 2008. Mr Moore also said he received an e-mail from Mr Guo on 31 March 2008 in which Mr Guo set out the following updates:
   • (a) a visa had been granted to Mr Lin and he was on standby and could come to Brisbane at any time; and
   • (b) the background checks regarding two of the nominated welders in China were tougher than expected and DIAC did not issue favourable reports. He nevertheless offered to continue to pursue their visa grants.
3. On the following day, 1 April 2008, Mr Moore replied to Mr Guo's e-mail in the terms I have set out above.
4. In his written statement Mr Moore said that he did not discuss the matter any further with Mr Guo. He said his impression was that, after giving clear instructions to Mr Guo in writing on 1 April 2008, no further visa processing of Mr Wu would occur unless instructed otherwise. However there was a handwritten file note of a conversation Mr Guo apparently had with Mr Moore amongst the s. 37 (Administrative Appeals Tribunal Act 1975) documents lodged with the Tribunal, which is undated, and which appears to say: May have shortage, asked Wu standby - OK but after visa grant to confirm when actually needed, maybe June. Despite this file note, when Mr Moore was asked by Mr Sharpe whether, after 1 April 2008 he told Mr Guo he would like to have Mr Wu on standby, he answered: No.
5. When I asked Mr Guo what he understood was meant by Mr Moore in his 1 April 2008 e-mail, he said:... he had no immediate need for Mr Wu and that unless circumstances changed in his company, he would not need Mr Wu but if circumstances changed within his company then he may, or he will need Mr Wu.
6. Mr Guo insisted that he never received instructions to withdraw Mr Wu's nomination. In fact, when it was put to Mr Moore in cross-examination that his e-mail of 1 April 2008 was not an instruction to specifically withdraw the sponsorship or to cancel the nomination, he said: It can be interpreted that way, yes. It was also put to Mr Moore in cross-examination that it was in his interest that Mr Wu would be on standby in case he needed him and Mr Moore responded: That wasn't my intention, but that could be inferred that way, yes. In examination by Mr Sharpe, Mr Moore was also asked whether he understood that up until April 2008 he was still providing services to LMT in respect of the nominations, Mr Moore answered: Yes. When I asked Mr Moore what those services were, he said: Well, it was providing applicants for sponsorship for 457 visas. When I pointed out to Mr Moore that the sponsorship and nomination process had been completed as approval had been given, he said: He was also providing some of our workers with PR applications. This is a reference to the permanent residency application which Mr Guo also undertook for LMT. When I pointed out to Mr Moore that this was not in relation to the nominations for which Mr Guo was first engaged, he agreed. When I put to him that the matter had been completed, he answered: Yes.
7. Mr Guo also maintained that under the sponsorship agreement, the employer was responsible for notifying DIAC where work had ceased or there was a change in circumstances. He was of the view that the employer was required, within 14 days, to notify DIAC if the employment had ceased or if the employer wished to withdraw the sponsorship. In cross-examination, he was asked whether he told Mr Moore about that obligation and he answered: Yes. Although Mr Guo did not refer to any authority, my investigations (on the DIAC website dealing with employer sponsored workers) reveal that a standard business sponsor must provide certain information to the Department in writing when certain events occur.
8. While I was unable to find any specific reference to the withdrawal of a nomination, there is certainly a requirement that the sponsor notify DIAC within 10 working days of the primary sponsored person ceasing employment. There is also a requirement to notify DIAC where there is a change to the work duties carried out by the primary sponsored person. The standard business sponsor is also required to notify DIAC where there is a change to the information provided to the Department in the sponsorship application.
9. The document setting out these notification requirements makes it clear that the events listed in the document are not exhaustive. Given the nature of the requirements to notify DIAC in the circumstances I have mentioned above, there is logic in notifying DIAC where a nomination which has been approved is subsequently withdrawn prior to the prospective employee utilising a 457 visa obtained subsequent to nomination approval to enter Australia. In fact, the DIAC booklet dealing with subclass 457 visas sets out when a nomination ceases and, in so far as it is relevant, it states:

An approval of a nomination ceases on the earliest of the following:

• the day on which the department receives notification in writing of the withdrawal of the nomination by the sponsor

1. It is reasonably clear from the above that the sponsor has an obligation to notify DIAC in writing of the withdrawal of nomination. It follows that a written notification of withdrawal could be made by the migration agent on the express instructions of the sponsor.
2. In cross-examination, Mr Moore agreed that he did not notify DIAC about the effect of the economic downturn on LMT's business or its ability to continue to sponsor its overseas employees. He said that he minimised the effect by reducing or restricting the number of employees that LMT was sponsoring. He agreed he never told DIAC that his company was in a position where it could not sponsor the number of employees it had applied to sponsor. When asked whether that was because he anticipated that in the future there would be a need for more people, he answered: Yes. He also agreed with the suggestion from Mr Guo that it would be a good thing for LMT to have overseas workers on standby ready to come to Australia when he needed more people. When asked whether it was correct to say that it was in LMT's interests for Mr Wu to be on standby to come to Australia when he needed more people, he answered: Yes, but we were unsure as to the time period of that.
3. Mr Moore was also taken to an e-mail dated 21 November 2008 to DIAC in which LMT notified DIAC that it wished to withdraw the 457 visa sponsorship of a Mr Li. Mr Moore agreed that he had notified DIAC of that withdrawal of sponsorship. That sponsorship had been withdrawn following the employee's conduct. Mr Moore also agreed that notifying DIAC of the withdrawal of sponsorship was consistent with the undertaking given by a sponsorship employer.
4. In his written statement Mr Moore said he became aware in March 2009 that Mr Guo had continued to process Mr Wu's visa application. He also testified that in around April 2008 he had ceased or withdrawn Mr Guo's authority to act on behalf of LMT and had appointed a new migration agent, Mr Lim of Global Connection Services.
5. However, and with respect to Mr Moore, there was no evidence before me that LMT had withdrawn Mr Guo's authority to act on its behalf. In fact, logically, because LMT's sponsorship and nomination applications had been approved, there was nothing further for Mr Guo to do under his appointment to act for LMT. In the statutory declaration made by Mr Guo on 22 December 2011, he said that soon after April 2008 he provided all the relevant documents and information to LMT's new agent, presumably Mr Lim. He was of the view that he was not authorised to do any further work for LMT from that time.
6. This should be contrasted with Mr Guo's obligations to Mr Wu in respect of the 457 visa application. In his statutory declaration Mr Guo said that he worked on Mr Wu's file under an agreement with Mr Wu's Chinese agent to employ his firm. He said he had a separate retainer with Mr Wu. In fact I had in evidence a Form 956 Appointment of a migration agent in which Mr Wu is described as the applicant. That document appears to have been signed by Mr Wu and it refers to Mr Guo being authorised to act on his behalf to receive written communications in relation to the subclass 457 visa application. Mr Guo has not signed that form.
7. In his statutory declaration Mr Guo said that his agreement was with the Chinese agent but in order to fulfil his obligations in Australia, he had a separate retainer with Mr Wu. He said all Chinese agents initially objected to a formal contract or to exchange contract details between their clients and his firm. In any event, Mr Guo testified that he had never received any money from Mr Wu regarding his application nor had he received any money from his Chinese representative in respect of his 457 visa application. I also had in evidence a translation of what appears to be the standard engagement letter from Mr Guo to Mr Wu dated 23 July 2007; the document indicating acceptance by Mr Wu of the conditions of the engagement dated 4 August 2007; and a document setting out Mr Wu's personal details for the employer sponsored visa application also dated 4 August 2007.
8. In his written statement Mr Moore said that on 24 February 2009 he received an e-mail from Mr Guo in which Mr Guo pleaded, from a humanitarian point of view, that he reconsider the employment of Mr Wu who had been granted his 457 visa some six months previously. The e-mail from Mr Guo states as follows:

Could you please reconsider the employment position of the last remaining welder ... [Mr S] Wu? His visa has been granted for over six months and it is sincerely wish that he could be given the opportunity to start his work with your company. He does not expect overtime work be available. From a humanitarian point of view, I hope you could agree to let him start work. It is just this one last guy and we hope you could be flexible.

1. Mr Moore also said that on 4 March 2009 he received an e-mail from Mr Guo in which Mr Guo offered an inducement to Mr Moore to employ Mr Wu. Mr Guo offered to pay disbursements in respect of the overseas employee (Mr Zhang) who unsuccessfully applied for permanent residency if Mr Moore agreed to employ Mr Wu.
2. An e-mail from Mr Roger Wilson, an officer with DIAC, indicates that by 30 April 2010 DIAC was aware that Mr Wu was granted a 457 visa on 30 June 2008 but had not commenced employment with LMT. In fact the e-mail indicates that Mr Wu's nomination was approved by DIAC on 8 October 2007. That confirms Mr Guo's evidence-in-chief where he said that the nomination was approved in October 2007 and that soon after that day, the file was closed as the work had been completed. Mr Wilson also said:

It is almost two years since the visa grant and there does not appear to be any notification to the department of cessation of employment or the withdrawal of the sponsorship of the visa holder by the sponsor.

1. In my opinion, the evidence discloses that Mr Guo properly carried out his instructions to act for LMT in respect of the sponsorship and nomination applications under the subclass 457 visa scheme. LMT obtained sponsorship approval for 12 nominations on 27 August 2007. Mr Wu was one of the nominated prospective employees and that nomination was approved by DIAC on 8 October 2007. After that date, Mr Guo acted for the nominated prospective employees to assist them in obtaining their 457 visas. In fact, more accurately, he acted for Hisense which was the agent for those nominated employees who were resident in China. There were some difficulties in those nominated employees obtaining 457 visas due to some unsatisfactory background checks.
2. Mr Guo updated LMT regarding visa approvals on 14 February 2008. He explained where he was at with regard to obtaining 457 visas for the nominated employees and he specifically said to Mr Moore that he had the option of not going ahead with the remaining five welders who had visas pending. The evidence does not indicate Mr Moore responded to this e-mail. The next contact Mr Guo had with Mr Moore appears to have occurred on 31 March 2008 when he informed Mr Moore that one of the nominated visa applicants had been granted a 457 visa and that he was available to come to Australia immediately. Mr Guo also advised Mr Moore that some problems had been encountered with the background checks of welders in China although he was still pursuing the grant of the visas. This prompted Mr Moore to e-mail his response on

1 April 2008 and he was of the view that he had given clear instructions to Mr Guo that no further visa processing of Mr Wu should occur unless instructed otherwise. With respect to Mr Moore, what he said in his e-mail of 1 April 2008 does not go that far. In fact, in cross-examination he admitted as much. 3. The problem with what Mr Moore said in his e-mail of 1 April 2008 is that Mr Guo understood what was said in a literal sense. With respect to Mr Guo, from the correspondence he has written and the evidence and submissions I had before me at this hearing, it is apparent to me that Mr Guo is not familiar with nuanced language. He appears to interpret written English literally. That explains his understanding of

Mr Moore's statement that while LMT did not need further employees immediately, if other employees left, he would require more employees. Those more familiar with the English language, and in particular the colloquial way in which Mr Moore's statement is expressed, would probably have concluded that LMT was simply not prepared to proceed with any remaining current nominations. 4. However, regardless of how that statement should be understood, it is clear that

Mr Moore did not ask Mr Guo to withdraw any nominations. I find that it was the responsibility of LMT to give DIAC written notification of the withdrawal of Mr Wu's nomination if that is what was intended. Mr Guo had completed his work for LMT as instructed in October 2007 and, in any event, he was never instructed to notify DIAC of the withdrawal of any of the nominations which had been approved. I also find that after October 2007, Mr Guo's involvement in the LMT sponsorship under the subclass 457 visa scheme was limited to acting for nominated employees in applying for the 457 visa.

1. MARA contended that in June 2007 Mr Guo was engaged by LMT to provide services with respect to the nomination of skilled personnel under the subclass 457 visa scheme. Shortly after being engaged by LMT, he was engaged to apply for a subclass 457 visa on behalf of Mr Wu. MARA described Mr Guo as providing a combined service which involved acting for LMT with respect to the nominations and for visa applicants who were intended to fill the nominated positions.
2. It referred to a letter dated 23 July 2007 which appears to have been addressed to Mr Wu, setting out the terms and conditions upon which that service would be provided. In fact that letter is a translation of a letter written in Chinese by Mr Guo. Although the translated document contains a salutation to Mr Wu, it is not clear that it was addressed to him. In fact it states: Via the recommendation by Hisense Hong Kong, it is our great pleasure to be entrusted with the abovementioned visa application for you. Furthermore, under the heading Our Services is set out the following: Our services are restricted to provide assistances for the visa application, when an employer as a sponsor has been nominated for you. With respect to MARA's contentions, rather than a combined service, it appears from this letter that the visa application on behalf of Mr Wu was to be made following successful sponsorship and nomination applications on behalf of LMT.
3. MARA also contended that Mr Guo was aware that a potential conflict of interest arose from acting for LMT with regard to the nominations and acting for Mr Wu regarding the related subclass 457 visa application. It referred to Mr Guo's letter to LMT accepting instructions which is dated 7 June 2007 where he said, under the heading Confidentiality and Potential Conflict of Interest:

I advise that we will be acting for both you (the Sponsor) and the cooks (the Visa Applicants). I advise that generally there will not be any conflict of interest as the objective is simply for quality cooks to come to Australia to work and the employer is expected to comply with Australian laws - Tax, Labour Laws, Occupational Health and Safety etc.... However, there may be certain information which may be withheld from the party to the other pursuant to obligations under client confidentiality rules. Where any conflict of interest may arise, I shall advise you of it. I note that so far, there have not been any issues in relation to conflict of interest with any of our clients even though we work predominantly in this area of practice.

1. The fact that the above quoted passage refers to cooks simply underscores the fact that Mr Guo has adopted a standard clause in an engagement letter drafted by someone else for another purpose. That was his evidence. It is not a practice to be recommended.
2. MARA also pointed out that in the translated letter of 23 July 2007, under the heading Conflicts of Interest, set out the following:

During the process, it is unavoidable to encounter conflicts of interest. As we will assist the employer to apply for their eligibility of nomination as the sponsor, some of the information related to the employer must be kept confidential from the applicant. However, the common goal for the two parties is to achieve the success for the company in the future on the sound foundation of relationship of both parties; therefore there would be slim chances for conflict of interest to occur. If it does affect your application we will flag it to you in advance....

1. With respect to Mr Guo, even the above quoted statement appears to have been borrowed from others. It also discloses a misunderstanding of the nature of the relationship between a migration agent and his or her client. It fails to distinguish the basis upon which conflict may arise where the parties are in a fiduciary relationship from those relationships which are merely contractual. Before teasing out the differences between the two, it is of some importance to understand the distinction between providing immigration assistance and providing immigration legal assistance to clients. That is because the relationship between the parties will differ depending upon the nature of the assistance being given by the migration agent. Some migration agents are lawyers, and some are not. However, merely because a migration agent is a lawyer, does not necessarily mean that the assistance he or she gives to their client is immigration legal assistance.
2. The expressions, immigration assistance and immigration legal assistance, are defined in ss 276 and 277 of the Migration Act. Insofar as they are relevant to this matter, they provide:

(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.

(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
• (c) representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations....

277 Immigration legal assistance

(1) For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:

• (a) acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or
• (b) represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or
• (c) gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:

(i) the preparation or lodging of the visa application or cancellation review application;

(ii) proceedings before a review authority in relation to the visa application or cancellation review application;

(iii) the review by a review authority of a decision relating to the visa application or cancellation review application.

(2) For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:

• (a) represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or

• (b) gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)).

(3) A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:

• (a) the preparation or lodging of an approved form putting forward the name of the visa applicant; or
• (b) the preparation or lodging of an approved form undertaking sponsorship; or
• (c) proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or
• (d) the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant). ...

1. Mr Guo is a lawyer. Therefore one needs to be careful when identifying whether the work he conducted for LMT and Mr Wu involved immigration legal assistance. As far as work conducted for LMT was concerned, his letter of engagement dated 7 June 2007 simply states he confirmed LMT's instructions to act for it concerning sponsorship and nomination applications in respect of the subclass 457 visa scheme. That letter also states that Mr Guo would provide related services including: Preparation of advice, documents and forms in support of the applications; drafting a legal submission to DIMIA; and advising you [LMT] in relation to any aspect of the application process.
2. There was no evidence before me that Mr Guo drafted any legal submissions to DIMIA (now called DIAC) in the course of acting for LMT. In fact the sponsorship and nomination applications appear to have been accepted without any queries or complications arising. Mr Guo did send to LMT an e-mail on 14 July 2007 in which he addressed evidence of training and a training plan; and a checklist of supporting documents relating to the subclass 457 visa. While it is clear that Mr Guo advised LMT in respect of the training of local employees, that advice was directed squarely to the requirement to demonstrate LMT trained Australian employees during the period since the last sponsorship agreement. Mr Guo suggested the provision of invoices or payslips for apprentices and other records of on-the-job training and invoices related to outsourced training. He also attached a draft training plan which he described as only a sample. The checklist of supporting documents asked Mr Moore to provide certain materials for the purposes of the sponsorship application. Although that e-mail also addressed the subclass 856 permanent residency visa, that is not subject of this application. In any event, in addressing that topic, Mr Guo only informed Mr Moore of some of the requirements that an applicant needed to meet as part of the permanent visa application.
3. The e-mail Mr Guo sent to Mr Moore on 14 February 2008 simply attached the notification from the DIAC that the standard business sponsorship was approved. Mr Guo also reported on the status of the nominations and the progress of visa applications.
4. In my opinion, in acting for LMT in respect of the 457 visa sponsorship and nomination applications, Mr Guo did not provide LMT with immigration legal assistance. While it is correct to say that he gave advice to LMT about nominating or sponsoring a visa applicant for the purposes of the Migration Regulations, which satisfies the provisions of s. 277 (2)(b), the exception in subsection (3) applies. That is because the advice given by Mr Guo to LMT was solely about nominating or sponsoring visa applicants for the purposes of the Regulations and that advice was to enable the preparation or lodging of an approved form for undertaking sponsorship and, presumably, nomination. In fact it falls squarely within the provisions of s. 276(2)(a) and (b) because Mr Guo used his knowledge of or experience in migration procedure to assist LMT in preparing or helping to prepare a document indicating that LMT nominated and sponsored certain visa applicants for the purposes of the Regulations. It could also be described as advising LMT about nominating or sponsoring visa applicants for the purposes of the Regulations.
5. Similarly, Mr Guo's letter of 23 July 2007 accepting instructions to act for Mr Wu only refers to the 457 visa application. In that letter, the further services to which Mr Guo refers include matters regarding the application for the visa and the preparation for necessary documents and forms. While Mr Guo states that, as the principal lawyer at the Australian Career Migration Lawyers (short for ACML), I will assist you with the visa application to the best of my ability.... He also states, our services are restricted to provide assistances for the visa application, where an employer as a sponsor has been nominated for you. In my opinion, Mr Guo provided only immigration assistance to

Mr Wu. He used his knowledge of, or experience in, migration procedure to assist

Mr Wu by preparing or helping to prepare his visa application which falls within

s. 276 (1)(a) of the Migration Act. In my opinion, he did not provide Mr Wu with immigration legal assistance. 6. Having found that Mr Guo did not provide immigration legal assistance to LMT or to

Mr Wu, it cannot be said that the relationship between Mr Guo and LMT or between

Mr Guo and Mr Wu was that of solicitor and client. His engagement was simply as a migration agent. That, in turn, has consequences regarding the common law duty owed by Mr Guo to LMT and to Mr Wu. The first thing which needs to be observed is that clause 1.9 of the Code of Conduct provides that it is not intended to displace any duty or liability that a registered migration agent may have under the common law, or a statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in light of this principle. 7. Ordinarily, the solicitor/client relationship has been regarded as a fiduciary relationship in which the agent owes to his principal fiduciary duties (see Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 96 - 97 per Mason J). Putting aside for the moment the provisions in the Code of Conduct set out in Schedule 2 of the Regulations which deal with standards of professional conduct of migration agents, if

Mr Guo was in a fiduciary relationship with LMT, the onerous duties imposed by that relationship would impact on whether a conflict of duty arose. As is explained by the authors of Bowstead & Reynolds on Agency (18th edition, Sweet & Maxwell, 2006), at 6 - 044:

A related, and now regarded as clearly distinct, situation in which an agent can cause loss to his principal occurs where he acts for two principles and does not disclose to one his involvement with the other. In this situation the agent does not prefer his own interest, but equally may not act entirely in the interests of either single principal. There may also be breach of the duty of loyalty in the sense that the loyalty must be undivided. In such cases he may cause loss to one by failure to disclose information acquired in connection with the other - information, indeed, the disclosure of which would be a breach of duty to the first.

1. I should also point out that use of the word agent in describing the role of Mr Guo in the sponsorship and nomination applications, and the visa application does not necessarily mean that all agents are always fiduciaries. Bowstead & Reynolds points out that the notion that every agent is a fiduciary and hence owes fiduciary duties is not necessarily correct. It states, at 6 - 036:

This can be criticised on the basis that not every person who can be described by the word "agent" is subject to fiduciary duties; and that a person who certainly is so to be described may owe such duties in some respects and not in others. Hence it is said that there may be a "non-fiduciary agent", and that in some functions an acknowledged agent may not act as fiduciary at all....

The first is that the word "agent" can be used in varying senses, and not all persons to whom the word is applied are agents in the full (or sometimes, any) legal sense. A canvassing, or introducing agent, for instance, may do no more than bring two parties together and thus may in many situations do nothing involving the incidence of fiduciary responsibilities at all; though equally he can, as has been stated above, in some circumstances become liable for breach of such duties, as when he conceals from his principal the existence of further offers.

1. In fact, as the learned author points out at 6 - 034:

An agent in the strict sense of the word holds a power to affect the legal relations of his principal.

1. In my opinion, it cannot be said that Mr Guo held the power to affect the legal relations of LMT or Mr Wu. The relationship was simply contractual under which Mr Guo undertook to conduct certain activities for each of those clients. Therefore, Mr Guo did not owe fiduciary duties to either LMT or Mr Wu. In that case, the broader situations in which a conflict of interest may arise where the parties are in a fiduciary relationship do not apply to Mr Guo. Therefore, if I were to find that Mr Guo did not act entirely in the interests of LMT or Mr Wu, under common law principles, that would not necessarily constitute a conflict of interest. Two examples may assist.
2. A lawyer of a large firm of solicitors, which has litigation and commercial departments, may receive instructions to act on behalf of a client as plaintiff in litigation matter. On conducting a conflict check, the lawyer discovers that the commercial department already acts for the proposed defendant. The litigation matter is unrelated to the commercial transaction. Because the firm is in a fiduciary relationship with its clients, it has a duty to each of its clients by making available to them all of the firm's knowledge which may assist in the conduct of their particular matter. Therefore, if the commercial department has information acquired from the proposed defendant which may be relevant in the proposed litigation, it has a duty to make that information known to the lawyers in the litigation department who intend to conduct litigation. Quite plainly, such unauthorised disclosure would be a breach of duty to the proposed defendant. Such a conflict of duty would prevent the firm from accepting instructions in the litigation matter.
3. On the other hand, real estate agents frequently act for sellers and purchasers. However, their relationship is not one which attracts fiduciary duties. The duties are established by contract. Therefore if the real estate agent is aware of problems with the property which is being sold, subject of course to any statutory or contractual provisions which may require disclosure, the real estate agent does not have a duty to a purchaser to make that information available.
4. In Mr Guo's case, the matter would of course be different if Mr Guo had an interest in either transaction which may have an adverse impact on the interests of LMT or Mr Wu. Such an interest might arise if Mr Guo was only to be paid in the event of successful sponsorship and nomination applications and a successful subclass 457 visa application. In other words, a conflict might arise if his fee was contingent upon the outcome of the applications.
5. Clause 2.1A of the Code of Conduct describes the circumstances in which a registered migration agent must not accept a person has a client due to a conflict of interest. The relevant subclause (d) which applies to Mr Guo is that which refers to there being any other interest of the agent which would affect the legitimate interests of the client.
6. MARA contended that although Mr Guo initially disclosed to LMT and Mr Wu the potential for a conflict of interest, at the time of disclosure there was a common goal between the parties. The expression common goal appears to have been taken from the 23 July 2007 letter of acceptance of instructions from Mr Wu to act. In that letter, the common goal is apparently described as achieving success for the company (LMT). Although in its contentions MARA claimed that the situation changed when LMT did not have an immediate need for Mr Wu's services, and there could no longer be a common goal between LMT and Mr Wu, the notion of a common goal is, respectfully, a fiction. In any event, the absence of a common goal is not necessarily indicative of a conflict of interest. In my view, LMT's goal was to obtain skilled labour while Mr Wu's goal was to come to Australia to work, where, undoubtedly, he was able to achieve higher remuneration. While those goals are clearly not common, nor are they in conflict.
7. If in fact Mr Guo was in a fiduciary relationship with the LMT and Mr Wu, then his knowledge that LMT anticipated restricting its workforce and that unless other employees left its employ, it would not require any additional employees as at 1 April 2008, it might be properly said that Mr Guo was then in a conflict position. In my respectful opinion, in those circumstances, Mr Guo may well have had a duty to disclose that to Mr Wu to enable Mr Wu to consider whether he should continue with his application for the subclass 457 visa. However, that was not the situation. I have found that Mr Guo was not in a fiduciary relationship and therefore his duties to both LMT and Mr Guo must be found in his contractual arrangements with those parties and any statutory provisions, particularly those dealing with standards of professional conduct.
8. There was no evidence of any contractual obligation requiring Mr Guo to share all knowledge he had about one client with the other. The agreement Mr Guo had with LMT contained a confidentiality provision which simply indicated that there may be some information which would be withheld, from the party to the other (whatever is meant by that), said to be pursuant to obligations under client confidentiality rules. Regardless, clause 3.1 of the Code of Conduct provides that a registered migration agent has a duty to preserve the confidentiality of his or her clients. Clause 3.2 provides that the migration agent must not disclose confidential information about a client or a client's business without the client's written consent, unless required by law.
9. Therefore, the only basis upon which a conflict of interest can be said to arise in this matter is if Mr Guo preferred his own interest ahead of that of either of his clients. The payment of Mr Guo's fee for the work he undertook was not contingent upon the success of either application. He did not charge a fee to LMT. It could not therefore affect the legitimate interests of either LMT or Mr Guo if his efforts in attaining sponsorship and nomination applications and a subclass 457 visa were unsuccessful. This is despite MARA's contention that upon the grant of a visa to Mr Wu, Mr Guo became entitled to claim his fee from Hisense. There was no evidence before me that the payment of Mr Guo's fee was contingent upon the visa being granted. In fact despite the grant of Mr Wu's visa, Mr Guo was not paid and in fact, subsequently, as is recorded in a file note dated 23 May 2010, Hisense refunded Mr Wu his money (presumably he had paid the Chinese agent) and Mr Guo told the Chinese agent not to bother with his fee. Accordingly, I find that Mr Guo did not have the conflict of interest claimed by MARA. He was not in breach of clause 2.1A or 2.1B of the Code of Conduct. Nor was he in breach of clause 2.1 because in my opinion, he acted in accordance with the law and the legitimate interests of both LMT and Mr Wu. There is no evidence that he did not deal with either of those clients competently, diligently and fairly.
10. Even if I am wrong in my analysis of the duties Mr Guo owed to LMT and Mr Wu, I would nevertheless find that Mr Guo did not have a conflict of interest. That is because I find it was not unreasonable or improper for Mr Guo to continue to proceed with Mr Wu's subclass 457 visa application following Mr Moore's e-mail of 1 April 2008.
11. Mr Guo's understanding of that e-mail was, in a literal sense, not incorrect. In fact, when it was put to Mr Moore in cross-examination that the statement he made in the 1 April 2008 e-mail was not an instruction to specifically withdraw the sponsorship or to cancel the nomination, he answered: It can be interpreted that way, yes.
12. Mr Guo also testified that he had spoken with Mr Moore after the e-mail and he understood that Mr Wu would be needed if circumstances changed at LMT. Mr Guo also said that in around May 2008 when he sent an e-mail to DIAC seeking approval for Mr Wu, he had a discussion with Mr Moore by telephone. His file note of that conversation recorded: Okay to come, on standby and Mr Guo explained this in evidence by stating, but that was... In that he didn't provide much details, and it's somewhere... Yes, to be on standby or to be on call.
13. Although Mr Moore did not recall this telephone conversation, I cannot ignore that evidence as it is consistent with what is said in the 1 April 2008 e-mail and with

Mr Moore's acceptance of the way in which his statement in that e-mail could be understood. It is also consistent with the fact that Mr Moore agreed he had not instructed Mr Guo to cancel the nomination of Mr Wu nor had he done so in writing. Mr Guo's evidence was that he received no instructions to withdraw the sponsorship for Mr Wu. Although Mr Moore said in an e-mail to Mr Wilson of DIAC on 30 April 2010 that LMT had:... asked Australia Career Migration Agents not to go ahead with any more nominations in early 2008... they - Ziran Guo must have proceeded with this nomination without our knowledge and therefore I would consider it invalid, that statement is based on Mr Moore's understanding of what he intended to say in the 1 April 2008 e-mail, not what he in fact said. 14. Therefore, on the balance of probabilities, I find that Mr Moore did not instruct Mr Guo to cancel Mr Wu's nomination nor did he take any steps to cancel that nomination after April 2008. In fact the evidence strongly suggests that Mr Moore was content to leave the nomination open in case he needed Mr Wu at some future point in time. In those circumstances, it was not only proper for Mr Guo to continue with Mr Wu's subclass 457 visa application after April 2008, in fact it was his duty to do so. Furthermore, Mr Moore was aware that Mr Guo continued to assist Mr Wu in obtaining the visa and that it was his (Mr Moore's) responsibility to notify DIAC in writing of the withdrawal of that nomination should Mr Wu's services not be required. He did not do so. DIAC made that clear in its e-mail of 30 April 2010 when it pointed out it was some two years since

Mr Wu had been granted a visa and there did not appear to be any notification to the department of cessation of employment or the withdrawal of the sponsorship of the visa holder by the sponsor.

1. MARA contended that Mr Guo had breached clauses 2.9 and 2.19 of the Code of Conduct which deal with statements made by a migration agent in support of an application under the Migration Act or Migration Regulations; or encourage the making of statements which the agent knows or believes to be misleading or inaccurate. Furthermore, a migration agent has a duty to provide sufficient relevant information to DIAC to allow full assessment of the facts against the relevant criteria.
2. MARA referred to an e-mail sent by Mr Guo to a Mr Ian Seymour, an officer at DIAC, on 21 May 2008 to which were attached number of photographs of Mr Wu conducting welding and a finished welding product. This e-mail was apparently sent following the background checks conducted on Mr Wu which found that he did not perform all the duties outlined in the employment reference. Mr Guo submitted that the enclosed photographs demonstrated Mr Wu's skill in welding. The e-mail went on to say:

Furthermore the employer is located in a regional area and would like Mr Wu to start work at the earliest possible time. We sincerely hope that the visa could be processed.

1. MARA submitted that because Mr Guo was informed on 1 April 2008 that LMT did not wish to proceed with the employment of Mr Wu, that statement was misleading and inaccurate.
2. When Mr Guo was asked about this statement in cross-examination he said: I would say there would appear to be embellishment. When asked why he embellished the true position, he said he believed it was in Mr Wu's best interests to have his visa approved. He also explained that from the information which was available to him, he believed it was also in LMT's best interest for Mr Wu to be on standby.
3. The problem here is the fact that what Mr Moore said in his e-mail of 1 April 2008 was anything but clear. As I have already found, Mr Guo's interpretation of what was said was reasonable and those circumstances, together with the what is stated in the file note of his discussion with Mr Moore and the fact that LMT did not cancel the nomination, strongly suggests Mr Moore was prepared to leave the nomination open in case he could make use of it. Furthermore, given that the telephone conversation with Mr Moore referred to in the undated file note must have occurred sometime later in April or in May 2008, the reference to possibly utilising Mr Wu's services in June makes it reasonable for Mr Guo to wish to have that visa finalised quickly.
4. On the other hand, MARA submitted that Mr Moore's evidence was that in March 2008 LMT was having trouble with work falling short. This was despite the fact that in early January 2008 Mr Moore agreed that LMT had obtained approval for a further 20 nominations under the subclass 457 visa scheme. In fact he agreed that in early 2008 LMT was using nominations from both Mr Guo and from Mr Lim. Mr Moore agreed that of the 10 persons nominated by Mr Lim, about six arrived in Australia commencing employment in about June or July 2008.
5. Mr Moore was also asked whether he told any person at DIAC that LMT was in a position where it could not sponsor as many staff as it had anticipated. He answered: No. When it was put to him that it would be good to have overseas workers on standby to be ready to come to Australia when he needed more people, he answered: Yes. He also agreed to the suggestion by Mr Guo that it was in LMT's best interest for Mr Wu to be on standby to come to Australia when he needed more staff. In fact his answer was: Yes, but we were unsure... as to the time period of that. When Mr Moore was asked in cross-examination whether it was correct to say that he never told anybody to withdraw

Mr Wu's sponsorship, he answered: The fact that I advised you to cease any more undertakings with the applicants on that April e-mail was enough, I thought. 6. In his witness statement, which Mr Moore agreed had been prepared by an officer of DIAC after discussions with him, he said he checked it and he then signed off on it. At paragraph 10 of that statement he said that he discussed with Mr Guo around April 2008 the need to cease the recruitment drive and the processing of any further subclass 457 visa holders due to lack of employment duties for them within the business. Mr Moore also said he spoke with Mr Guo on a number of occasions by telephone although he had difficulties contacting him on his mobile telephone number. In my opinion, this adds credibility to Mr Guo's statement and the file note he made regarding having Mr Wu on standby. It also adds weight to the fact that Mr Moore never told Mr Guo that Mr Wu's nomination was cancelled or that he should cancel it. While Mr Moore said in cross-examination that he did not tell Mr Guo that he would like to have Mr Wu on standby, while that may be, strictly speaking, accurate, I find that he nevertheless accepted Mr Guo's suggestion that he be kept on standby. That, on the balance of probabilities, is what the evidence discloses. 7. Although MARA submitted that in his e-mail of 21 May 2008, Mr Guo made a statement which was misleading or inaccurate, I cannot agree. A breach of clause 2.9 of the Code of Conduct requires a migration agent to know or believe that the statement made to MARA is misleading or inaccurate. While I accept that Mr Guo's statement in that

e-mail may correctly be described as an embellishment of the position at that time, it is clear that Mr Guo was simply acting in the best interests of Mr Wu. While it was clear to Mr Guo that the number of employment opportunities at LMT was drying up, the possibility of further employment remained open particularly if other employees left the employ of LMT. In order to take advantage of such an event, clearly Mr Wu needed to have a 457 visa approved as soon as possible. While Mr Guo may have overstated the position, the statement was not made knowing or believing that it was inaccurate or misleading. That is because at that time it was made, Mr Guo had reason to believe that the employment of Mr Wu by LMT remained open. 8. MARA also submitted that by making the statement to which I have referred in the

21 May 2008 e-mail, Mr Guo failed to disclose the true facts of the employer's intentions and failed to provide sufficient information to DIAC to allow a full assessment against the relevant criteria. According to MARA, that constituted a breach of clause 2.19 of the Code of Conduct. With respect to MARA, given the findings I have made regarding the circumstances in which Mr Guo made the alleged offending statement, I find that it cannot be said that Mr Guo breached clause 2.19 of the Code of Conduct. Mr Wu's nomination had not been withdrawn and Mr Moore left the clear impression that Mr Wu might, if other employees left the employ of LMT, be engaged.

REPUTATION AND INTEGRITY OF THE MIGRATION AGENT ADVICE PROFESSION

1. MARA contended that Mr Guo's conduct leading to breaches of clauses 2.1, 2.1B, 2.9 and 2.19 of the Code of Conduct necessarily means that he has also breached clause 2.23 which requires a registered migration agent to take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
2. With respect to MARA, given my findings regarding the clauses in the Code of Conduct to which I have referred above, they cannot form the foundation for a breach of clause 2.23.

1. MARA contended that a letter from Mr Guo to Mr Wu accepting instructions to act dated 23 July 2007 contained no statement of the fees and disbursements he would charge

Mr Wu. There was no complaint about the letter dated 7 June 2007 from Mr Guo accepting the instructions of LMT to act because Mr Guo agreed that no professional fees would be charged for that service. 2. As I have already indicated above, although Mr Guo was the registered migration agent who applied for Mr Wu's subclass 457 visa, this was conducted through Mr Wu's Chinese agent, Hisense. The letter accepting instructions to act on behalf of that visa application simply states the following in relation to fees:

Our service fees along with the application fee will be paid through Hisense Hong Kong. Please do not hesitate to contact Hisense or us if you have any other questions regarding the fees.

1. However, as Mr Guo explained in the course of his cross-examination, prior to Hisense engaging his services to obtain a subclass 457 visa for Mr Wu, Hisense had already been engaged by Mr Wu in China. He explained that Hisense advertised in China and then it contacted agents in Australia to act on behalf of its clients. Mr Guo also confirmed that he did not charge the individuals seeking the 457 visas for his services. He said he had a written agreement with Hisense, although no such document was put into evidence. When I asked Mr Guo whether he had an ongoing relationship with Hisense prior to taking on the task for Mr Moore, he said:

Yes. It basically says that we will be working for - we will help them lodge applications for their clients, and in the annexure, or in the - yes, schedule - it said for employment visas. It was for $2200.

1. The evidence given by Mr Guo regarding his relationship with Hisense was not contradicted by other evidence. There were also a number of file notes in evidence of conversations Mr Guo had with the Hisense agent. In particular, there was a file note of the conversation Mr Guo had with the Chinese agent on 23 May 2010 which stated:

CA [Chinese agent] advised refunded Wu his money. Our fee CA don't bother. CA no comment.

1. Mr Guo confirmed that he was not paid for obtaining the 457 visa for Mr Wu. Regardless, the question is whether Mr Guo complied with clause 5.2 of the Code of Conduct in respect of the charges and fees which he anticipated would be paid for obtaining a 457 visa for Mr Wu.
2. To answer that question, I first need to consider who Mr Guo's client was. While the evidence clearly indicates that Mr Wu employed the services of a Chinese agent to secure his subclass 457 visa, the Chinese agent in turn engage the services of Mr Guo in Australia to make that application. In other words, Mr Guo was the sub-agent of Mr Wu. I have not been able to locate anything in the Migration Act or the Code of Conduct which deals with sub-agents. I have therefore resorted to examining the common law principles which apply to sub-agents in order to determine their duties and responsibilities.
3. Bowstead & Reynolds makes it clear that the relation of principal and agent may be established by an agent between his principal and sub-agent if the agent is expressly or impliedly authorised to constitute such relation, or if his acts are ratified and it is the intention of the agent and of the sub-agent that such a relation should be constituted. The evidence discloses that Mr Guo had some direct contact with Mr Wu. There were in evidence some file notes made by Mr Guo recording those contacts. Those contacts appear to have occurred on 9 September 2008, 25 May 2010 and 3 March 2011. From what is set out in those file notes, it is reasonable to infer that Mr Wu was aware of the sub-agent delegation and approved of it. However, as the learned authors of Bowstead & Reynolds explain at 5 - 009: The consequences of authorised sub-delegation between principal and sub-agent depend on the way in which this was effected.
4. Notwithstanding that appointment, there is no privity of contract between a principal and a sub-agent merely because the delegation was effected with the authority of the principal. This often occurs where the agent appoints his own agent to do the requisite work. The authors of Bowstead & Reynolds state at 5 - 011:

The full position of such a person, who may genuinely be called a sub-agent, is not, however, fully worked out in English law. The tacit assumption in cases seems to be that if the sub-agent is not appointed to be in privity with the principal, he is only in privity with the agent and owes common law and fiduciary duties only to the agent....

The principal may also be liable to indemnify the sub-agent. These propositions do not rest on contract: indeed the sub-agent is not liable to the principal for breach of contract, for he normally has no contract with him, nor is the principal liable to the sub-agent for remuneration.

1. Mr Guo's evidence in this case was that he agreed to charge the agent, Hisense, $2200 in return for making Mr Wu's subclass 457 visa application. His handwritten file note of

23 May 2010 reflects the fact that Mr Guo considered himself to be in a contractual arrangement with Hisense and not with the principal, Mr Wu. In these circumstances, it is more likely than not that Mr Guo's client was Hisense rather than Mr Wu. 2. Given that Mr Guo's uncontradicted evidence was that he entered into an agreement with Hisense to make the application on behalf of Mr Wu and other applicants for the subclass 457 visa, and that the agreement between the two parties stated that he would help lodge applications for the clients of Hisense for which he was to be paid $2200, those facts go some considerable way towards satisfying clause 5.2 of the Code of Conduct. It satisfies the provisions set out in s. 313(2) of the Migration Act. While clearly what Mr Guo did was not strictly in accordance with clause 5.2, he did tell Hisense the nature of the work he would perform and the fees for those services. He did not provide an estimate of charges in the form of fees prior to commencing the work nor did he, after receiving instructions, obtain written acceptance of those fees. For those reasons, I find that

Mr Guo did not comply fully with the requirements set out in clause 5.2 of the Code of Conduct, although I also find that his omissions were of a relatively minor nature, having arrived at the final position without any evidence of the path taken to that position.

1. A registered migration agent is not only required to maintain proper records which can be made available for inspection on request by MARA, but the agent must also keep the records for a period of seven years after the date of the last action on the file for the client unless the documents have been given to the client or dealt with in accordance with the client's written instructions.
2. In an e-mail to MARA dated 23 August 2011, Mr Guo acknowledged that his client file and record keeping may not have been as extensive as it should have been. Furthermore, the correspondence between Mr Guo and MARA makes it clear that Mr Guo appeared to be obsessed with not disclosing what he considered to be privileged documents. This appears to have stemmed from his belief that he was acting as a solicitor on behalf of both LMT and Mr Wu. He referred to DIAC having a copy of the nomination application for LMT.
3. Mr Guo appears to me to have misunderstood the operation of legal professional privilege. With respect to Mr Guo, he also appears to have misunderstood that the privilege is that of the client, not of the legal practitioner. Young J in AWB Ltd v Cole and Another [2006] FCA 571; (2006) 152 FCR 382 canvassed in detail the authorities dealing with legal professional privilege and in particular, what qualifies as legal advice. He summarised those authorities in the following way, at 410:

Having regard to the foregoing authorities, I accept that legal advice is not confined to telling the client the law but includes professional legal advice as to what should prudently and sensibly be done in a relevant legal context. Furthermore, in view of the House of Lords' decision in Three Rivers, I also accept that legal advice includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry.

There are, however, two additional points to be made. First, to qualify as privilege, the lawyer's advice must satisfy the description of professional advice given by a lawyer in his or her capacity as such... Secondly, communications for the purpose of obtaining and giving legal advice in this sense discussed in Balabel and the other cases mentioned above must satisfy the dominant purpose test if they are to attract legal professional privilege.

1. As I have already found above, Mr Guo did not provide immigration legal assistance to either LMT or Mr Wu. Certainly, on the evidence before me, there was no document amongst the documents which were produced at the hearing of this matter which disclosed that Mr Guo had provided professional advice as a lawyer. Unfortunately, his misunderstanding appears to have led Mr Guo to believe that there were a number of documents which should not be disclosed to MARA.
2. In its statement of facts, issues and contentions, MARA stated that other than the letter from Mr Guo to Mr Wu dated 23 July 2007 confirming his instructions, he did not have any direct contact with Mr Wu until 4 July 2008. It was then put that the application process for Mr Wu's visa was undertaken with the assistance of Hisense. With respect to MARA, that misidentifies what in fact occurred and what Mr Guo said in his statutory declaration made on 22 December 2011. Mr Guo said: As to Mr Wu, I was employed by his agent/representative in China. However, in that document Mr Guo also claims to have fulfilled his duty of care to Mr Wu by not releasing his file because it contained privileged communications following Mr Wu's calls to his office in 2010 seeking legal advice. This statement appears to be made in respect of DIAC withholding Mr Wu's passport and not returning it to him when requested. While any correspondence or file notes relating to that matter may well have attracted legal professional privilege, that does not excuse Mr Guo from producing the remainder of Mr Wu's file. Although

Mr Guo referred to s. 277 (1)(c) of the Migration Act, the provisions set out in that section have no application in respect of withholding Mr Wu's passport. 3. Although MARA submitted that Mr Guo had not provided any record of written or oral communications between himself and Hisense prior to 23 July 2008, in his oral evidence Mr Guo referred to an unsigned copy of a document sent to Hisense which he said was an engagement agreement. At the hearing, Mr Sharpe did not call for its production. 4. MARA also submitted that Mr Guo's records of communications with LMT were deficient. It noted that the only record of telephone conversations with Mr Moore was one file note and that there was no record of instructions given by LMT, either orally or in writing to the effect that Mr Guo was not to act for LMT after April 2008. In cross-examination Mr Guo said that he did not receive written instructions from LMT. He also said that he had never been instructed in writing or verbally by LMT to withdraw or cancel Mr Wu's nomination. As to file notes of discussions with Mr Moore, some of which were apparently absent, Mr Guo admitted to not keeping records of every telephone discussion. His explanation was that many of those communications were outside ordinary business hours while he was not in his office and he found it impractical to make file notes. In cross-examination he explained he now tended to write more detailed file notes and to express his opinion on those notes more regularly. He also said that when he received a call outside work hours, he no longer picked up calls from clients and that was a way of limiting the number of file notes required to be made. 5. MARA also submitted that Mr Guo did not appear to keep records of communications with DIAC. Mr Guo's explanation was that his communications with the Department were essentially by e-mail. He said he did not generally print those e-mails and did not provide them to the Department on the understanding that they already had copies of those documents. With respect to Mr Guo, that is not an acceptable explanation. Where a request is made for documents pertaining to a particular client file, all of those documents held in electronic form should be printed off and provided to DIAC or MARA on request. 6. I find that Mr Guo did not maintain proper records in accordance with clause 6.1 of the Code of Conduct. The records must be made available for inspection on request by MARA. That necessarily indicates that documents kept in electronic form should be downloaded and hard copies placed on the file. In addition, file notes of every substantive or material oral communication should be made and placed on the file. 7. However, Mr Guo did keep many essential documents on file and, according to his evidence, some documents in electronic form. He also kept a number of handwritten file notes which were on file. I accept, to a certain extent, his explanation about the difficulty in keeping file notes. Mr Guo accepted he should have been more diligent and indicated that his conduct has altered since this was brought to his attention. He no longer accepts telephone calls outside normal hours when he is not in a position to record the content of the telephone conversation. While Mr Guo was plainly in breach of the Code of Conduct in respect of record keeping and management, the breach could not be described as egregious or such that it should be the cause for serious concern about his behaviour. He plainly needs to be more careful about document maintenance in respect of his practice.

REGARD TO A CLIENT'S DEPENDENCE ON THE AGENT'S KNOWLEDGE AND EXPERIENCE

1. MARA, in written submissions lodged following the conclusion of the hearing, submitted that in addition to the breaches to which I have referred above, Mr Guo was also in breach of clause 2.4 of the Code of Conduct. According to MARA, even if

Mr Wu and LMT wished to proceed with Mr Wu's visa application in May 2008 to allow Mr Wu to be on standby in case a position became available, by not informing them of the risks of compliance action which may follow, Mr Guo did not have due regard to

Mr Wu's and LMT's reliance upon his knowledge and experience of the 457 visa program. 2. With respect to MARA, I find it difficult to understand that submission. The conduct of Mr Guo in continuing to assist Mr Wu to obtain his subclass 457 visa after April 2008 did not give rise to any risks of compliance action. Mr Wu's nomination had not been cancelled and both Mr Moore and Mr Guo were aware of that. With no action taken by the sponsor to withdraw the nomination in writing, the nomination remained active for at least 12 months after the day on which the nomination was approved (see: DIAC booklet page 28). Mr Wu's nomination was approved by DIAC on 8 October 2007. He was granted a subclass 457 visa under the LMT sponsorship on 30 June 2008. Plainly, that is within the 12 month period during which a nomination remains active. There is nothing in the Migration Regulations which so much as suggests any wrongdoing by Mr Guo in continuing with Mr Wu's visa application at the time that he did so. Nor is there anything in the Migration Regulations that I am able to locate which places any time restraints on a subclass 457 visa holder regarding the time by which that person must enter Australia and commence employment with the sponsor. 3. Furthermore, in the course of the hearing I took into evidence an extract of a document which forms Part A of Form 1110 (design date 04/07) which is a request from DIMIA seeking information from persons who have sponsored employees under the 457 visa scheme. It was part of the monitoring process undertaken by DIMIA to assist in ensuring compliance with all program requirements and all relevant Australian laws. The form was required to be completed and returned to DIMIA within 28 days of its date. It expressly states that the sponsor is not required to use a migration agent to complete the form. It appears to have been in use at the time Mr Guo applied for LMT to sponsor

Mr Wu. It deals with business sponsor monitoring and, in particular, sponsorship undertakings. In so far as it is relevant to this matter, it provides, at page 3:

If your business lodged sponsorship application on or after 1 July 2004 you will be responsible for meeting the following undertakings. The undertakings relate to any sponsored person who was granted a Temporary Business (Long Stay) Visa under a sponsorship agreement which was lodged on or after 1 July 2004. The business undertakes to do the following in relation to persons it has sponsored:

- any change in circumstances that may affect the business's capacity to honour its sponsorship undertakings; or

- any change to the information that contributed to the business's ability to be approved as a sponsor or the approval of a nomination;...

1. While the monitoring of 457 visas has been an ongoing process which continues to evolve, DIAC published a document entitled: Obligation to provide information to Immigration when certain events occur. It was to take effect from 14 September 2009 and it sets out that a standard business sponsor must provide certain information to the Department in writing when certain events occur. One of those events, not dissimilar to the extract I have set out above, provides:

If the sponsor is a standard business sponsor, there is a change to the information provided to the Department in the sponsorship application or the application to vary a term of sponsorship approval relating to the training requirement and the sponsor's address and contact details.

1. In my opinion, Mr Moore had an obligation to notify DIAC when he had determined that LMT's business capacity to honour its sponsorship undertakings had changed to such an extent that it could no longer accept overseas intending employees whose nomination had been approved. If that occurred prior to Mr Wu being granted his visa, the nomination should have been cancelled by Mr Moore. If it occurred after the visa had been granted, Mr Moore should have notified DIAC that LMT could no longer honour its sponsorship obligations which had been approved. The evidence discloses that Mr Moore was aware of these obligations. Had LMT complied with its obligations, Mr Guo would not have been placed in the position he was.

1. I have found that Mr Guo, although a lawyer, in acting for LMT and Mr Wu, only provided immigration assistance and not immigration legal assistance. He was not in a fiduciary relationship with either of those clients in respect of the sponsorship and nomination applications and the visa application. The only basis upon which Mr Guo could have had a conflict of interest was if he preferred his own interests ahead of that of either of his clients. I have found that he did not do so and therefore was not in breach of clauses 2.1, 2.1 A or 2.1 B of the Code of Conduct.
2. I have also found that Mr Moore did not at any relevant time instruct Mr Guo to cancel Mr Wu's nomination nor did Mr Moore notify DIAC in writing that he had withdrawn Mr Wu's sponsorship or nomination. In those circumstances, although Mr Guo may have embellished his correspondence with DIAC regarding Mr Wu's visa application, he did not provide misleading information. Mr Guo has not breached clauses 2.9 and 2.19 of the Code of Conduct. Nor has Mr Guo breached clause 2.23 by failing to maintain the reputation and integrity of the migration advice profession.
3. I have found that Mr Guo acted as a sub-agent of Mr Wu, being appointed by Hisense which was the agent. Although Mr Guo notified Hisense of the total costs involved in the visa application, he did not comply strictly with clause 5.2 of the Code of Conduct. However, in my opinion, his omissions in that regard were of a relatively minor nature.
4. Mr Guo disclosed a misunderstanding of legal professional privilege. That resulted in him having a significant disagreement with DIAC regarding the provision of documents and records. It is not an issue which goes to professional conduct. However, I have found that Mr Guo did not maintain proper records in accordance with clause 6.1 of the Code of Conduct. His record keeping, while not meeting the standard required, nevertheless was not so poor as to be a cause for serious concern about his behaviour. Furthermore, it was apparent to me that Mr Guo has accepted his deficiencies in that regard and has addressed them.
5. Finally, I have found that Mr Guo was not in breach of clause 2.4 of the Code of Conduct.
6. Given my findings on the evidence before me in this matter, I find that the decision made by MARA on 11 April 2012 should be set aside and in substitution I have determined that Mr Guo was not in breach of the migration agents Code of Conduct except for his breach of clauses 6.1 and 5.2 which I find were not of such a serious nature as to warrant a caution with conditions. Any caution registered against Mr Guo's name as a consequence of the matters referred to in this decision should be removed.
7. The proceedings have terminated in a manner favourable to the applicant.

(one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of

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