Background
Simone Kearney, a registered migration agent operating Affordable Visa Solutions, lodged nine employer nomination applications connected with visa applications. One application was under the Regional Sponsored Migration Scheme and eight were under the Employer Nomination Scheme. The businesses named as sponsors did not know of, or authorise, the applications, and supporting material concerning them had been fabricated.
Kearney said she had been deceived by intermediaries, including former parliamentarian Craig Thomson and solicitor Joe Nasr. The Migration Agents Registration Authority cancelled her registration in June 2023. The Administrative Appeals Tribunal affirmed that decision, finding breaches of the former Migration Agents Code of Conduct and finding that she was not a fit and proper person to give immigration assistance. Kearney appealed to the Federal Court on questions of law.
The Court’s Holding
Justice Dowling dismissed the appeal and ordered Kearney to pay the Authority’s costs. The Court held that, under the applicable definition, a “client” included a person to whom a migration agent agreed to provide immigration assistance, even if that person had not agreed to receive it and there was no formal retainer. The nine businesses could therefore be treated as Kearney’s clients notwithstanding their lack of knowledge of the applications.
The Court also held that “immigration assistance” under s 276(2)(a) of the Migration Act 1958 did not require the assisted person’s knowledge or awareness. It was open to the Tribunal to find that Kearney had provided that assistance through nomination applications lodged in her name, including work performed by her staff. The Tribunal had not found a separate legal duty to verify instructions directly with each business; rather, it treated her failure to make inquiries as evidence relevant to her recklessness, suspicions, and overall professional conduct.
Key Takeaways
- A migration agent may have a “client” for Code purposes without a formal retainer or the purported client’s consent or awareness.
- Preparing nomination documents can constitute immigration assistance even where the purported sponsoring business did not know of the work.
- An agent’s failure to make basic inquiries may support disciplinary findings, even if no standalone verification duty is identified.
Why It Matters
The decision confirms that the migration-agent disciplinary regime focuses on the agent’s conduct and the integrity of the migration system, rather than on formal contractual arrangements. Agents cannot avoid Code obligations merely because an intermediary supplied instructions or documents, or because the affected business was unaware that the agent purported to act for it.
The Court did not find Kearney knowingly participated in the fraud. But the Tribunal’s findings of reckless indifference, inadequate diligence, deficient records, and repeated professional failures were sufficient to support cancellation and the conclusion that she was not fit and proper to provide immigration assistance.