Diwan v Chandwani [2018] QCAT 445

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Diwan v Chandwani [2018] QCAT 445 PARTIES: PARSHANT DIWAN (applicant) v AMIT CHANDWANI (respondent) APPLICATION NO/S: MCDO60365-17 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 12 December 2018 HEARING DATE: 21 September 2018 HEARD AT: Brisbane DECISION OF: Dr Collier, Member ORDERS: Respondent is to pay Applicant $16,915.03 within 30 days. CATCHWORDS: CITIZENSHIP AND MIGRATION – MIGRATION – IMMIGRATION ASSISTANCE – OTHER MATTERS – debt arising under the Migration Act – client seeking refund for monies paid to Migration Agent where inadequate statement of services provided Migration Act 1958 (Cth), s 313, s 313(3), s 314(1) Queensland Civil and Administrative Act 2009 (Qld), Schedule 3 Code of Conduct for registered migration agents, effective 1 July 2012 Aguilar v Lampero [2014] QCATA 256 Frank Lanza Migration Services v Hotta [2010] QCATA 86 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: D Hadley, solicitor -- 1 of 8 -- 2 REASONS FOR DECISION [1] This matter came before the Tribunal for hearing on 21 September 2018. The Application raised issues that were more complex than would permit a decision to be given ex tempore on the day, so the matter was reserved for a written decision. [2] Parties were directed to exchange all relevant material by 15 October 2018 and to make final written submissions if they wished to do so by 19 November 2018. Final submissions were received from each party. [3] Mr Diwan is an Indian national who sought assistance in obtaining visas for him and his family to stay in Australia. For this purpose he engaged the services of Mr Chandwani, a registered migration agent.1 [4] Mr Diwan signed two agreements with Mr Chadwani, respectively dated 31 October 2014 and 10 November 2015. [5] The 2014 agreement was said to be for the supply of services related to a ‘457’ visa and that the schedule of fees for this service comprises a total lump sum of $6,000.00, plus a ‘total lump sum (Overdue charges) 2013F/Ref AMS’ of $6,550.00, totalling $12,550.00. The agreement said that the agent estimates the time taken to provide the services in this agreement will be ‘<1 DAY to complete 457 Visa Application(s).’ [6] The 2015 agreement was for the supply of services of the same description as the 2014 agreement, on this occasion for a total lump sum of $8,800. In this case the agreement said that the agent estimates the time taken to provide the services in this agreement will be ‘2 DAYS to complete Application(s).’ This agreement appears to have concerned an application on behalf of Mr Diwan dealing with ‘187’ visas. [7] Mr Chandwani issued two invoices to Mr Diwan, headed ‘Tax Invoice & Statement of Services’ respectively: (a) 3 November 2014 for $5,000; and (b) 10 November 2015 for $8,800. Mr Diwan said that he paid each of these invoices, a claim that was not denied by Mr Chandwani. [8] It appears that Mr Diwan has not been successful in obtaining the visas for which he engaged Mr Chandwani to assist in procuring. Mr Diwan appears to place some of the burden for the denial of the visas by the Australian Government on the conduct of Mr Chandwani, but this does not form the basis of his claim. Mr Diwan said that he is entitled to claim back the fees he paid Mr Chandwani as a debt due based on Mr Chandwani’s failure to render Mr Diwan statements of services as required by law. 1 Registered Migration Agent number 1001305. According to the website of the Office of the Migration Agents Registration Authority, Mr Chandwani ceased being a registered migration agent on 3 May 2018. -- 2 of 8 -- 3 The Applicant’s position [9] Mr Diwan said that the invoices rendered on him by Mr Chandwani, and which he paid, failed to conform with the requirements for a statement of services as set out in the Migration Act 1958 (Cth) (‘Migration Act’). [10] Sections 313 and 314 of the Migration Act apply to the facts here. They say the following: 313 Persons charged for services to be given detailed statement of services (1) A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person (the assisted person) unless the agent gives the assisted person a statement of services. (2) A statement of services must set out: (a) particulars of each service performed; and (b) the charge made in respect of each such service. (3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she: (a) made the payment to a registered migration agent for giving immigration assistance; and (b) did not receive a statement of services before making the payment; and (c) does not receive a statement of services within the period worked out in accordance with the regulations. (4) This section does not apply to the giving of immigration legal assistance by a lawyer.2 314 Code of Conduct for migration agents (1) The regulations may prescribe a Code of Conduct for migration agents. (2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct. [11] The Code of Conduct referred to by the Act is the Code of Conduct for registered migration agents effective 1 July 2012 (‘Code of Conduct’).3 The Code of Conduct has the force of law by virtue of the effect of s 314(1) of the Migration Act. [12] Insofar as it concerns this matter, clause 7.2 of the Code of Conduct says: A registered migration agent must hold, in the clients’ account, an amount of money paid by a client for an agreed block of work until: 2 Mr Chandwani is not a lawyer. 3 There is a later edition dated 18 April 2017, but this post-dates events in this matter. -- 3 of 8 -- 4 (a) the agent has completed the services that comprise the block of work; and (b) an invoice has been issued to the client for the services performed in accordance with the Agreement of Services and Fees mentioned in clause 5.2, showing: (i) each service performed; and (ii) the fee for each service. [13] The requirements of clause 5.2 of the Code of Conduct mentioned in the preceding paragraph deal substantially with the form of agreement required at the commencement of the engagement. [14] The provisions of clause 5.5 of the Code of Conduct deal with the consequences of a migration agent failing to comply with the requirement to provide particulars of each service performed: A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that: (a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2. Note: The statement of services may be an itemised invoice or account. See clause 7.2 and 7.4; and (b) a statement of services must set out: (i) particulars of each service performed; and (ii) the charge made in respect of each such service; and (c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she: (i) made the payment to the agent for giving immigration assistance; and (ii) did not receive a statement of services before making the payment; and (iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related. [15] The evidence disclosed that neither Tax Invoice & Statement of Services issued to Mr Diwan by Mr Chandwani (on 3 November 2014 and 10 November 2015) contained the charge made in respect of each service provided by Mr Chandwani. Each invoice contained only a list of services and a total sum charged. -- 4 of 8 -- 5 [16] There is little guidance as to what constitutes a sufficient statement of services in the written law or the case law, but the words and intent of s 313(3) of the Migration Act are sufficiently clear: (a) a registered migration agent may hold an amount of money paid by a client for an agreed block of work – for example, to obtain a ‘457’ visa; and then (b) must render a statement of services containing the particulars of each service performed and the charge made in respect of each service within that block of work. [17] There was no evidence that Mr Chandwani provided Mr Diwani with a statement of services within 28 days after a final decision was made by the government rejecting Mr Diwan’s visa application. Can the Tribunal hear this matter? [18] In its minor civil disputes jurisdiction the Tribunal may hear matters involving a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount.4 The prescribed amount is presently $25,000. [19] Section 313(3) of the Migration Act (paragraph [10] above) provides that, if the migration agent has failed to provide a statement of services as required, the assisted person may recover the amount of a payment as a debt due to him or her. [20] In an earlier decision of the Tribunal in Frank Lanza Migration Services v Hotta [2010] QCATA 86 the Appeal Tribunal, dealing with a matter with similar facts, had no difficulty in deciding the matter. [21] Similarly, in Aguilar v Lampero [2014] QCATA 256, the Appeal Tribunal held that a decision in first instance in which the migration agent was ordered to repay the fees paid by an assisted person as a debt due was within jurisdiction. [22] This matter involves an application to recover a debt and, based on the analysis here, the Tribunal is entitled to hear this Application. The Respondent’s position [23] Through his lawyer, Mr Chandwani argued that:5 (a) He acted at all times in good faith and used his best professional efforts and experience; (b) Adverse decisions were made by the government, over which he had no control; (c) That Mr Diwan’s claim is misconceived, vexatious and lacking merit; (d) That Mr Diwan’s claim is based on a technicality; 4 Queensland Civil and Administrative Act 2009 (Qld), Schedule 3. 5 Submissions by Oz Legal Migration Pty Ltd dated 5 November 2018 prepared by lawyer Mr Dave Hadley. -- 5 of 8 -- 6 (e) That in each case Mr Diwan executed a relevant migration agent client agreement; (f) That the services supplied are described in the detail required by the law in each respective migration agent client agreement executed by Mr Diwan; and, in particular (g) ‘The “Migration Agent Client Agreement” used by Mr Chandwani is a proforma document created for each new client, and each service undertaken for a client. It is compliant with the requirements of Part 5 of the Migration Agent Code of Conduct and compliant with the requirements of section 287 of the Migration Act 1958.6 It contains the details of the agreement between the migration agent and the client, the terms and conditions of the agreement and, on page 4, has a specific heading “Schedule of Fees” which breaks down and specifies the fee type, fee estimate, payment terms, stages, and the amounts to be charged and paid.’ [24] In his final submissions dated 5 November 2018 Mr Chandwani, referring to the two invoices rendered on Mr Diwan, said:7 We note that the tax invoice and statement of services provided by Mr Chandwani to the Respondent (sic) … and the statement of services therein is a summary of the services provided by Mr Chandwani to his client. Analysis [25] Mr Diwan is entitled to recover the money he has paid Mr Chandwani as a debt if each of the following conditions is met, namely, if Mr Diwan: (a) made the payment to a registered migration agent for giving immigration assistance; and (b) did not receive a statement of services before making the payment; and (c) does not receive a statement of services within the period worked out in accordance with the regulations.8 [26] I am satisfied that Mr Diwan paid two sums amounting to $13,800 to Mr Chandwani for the purposes of receiving immigration advice from Mr Chandwani. [27] A statement of services must set out the particulars of each service performed and the charge made in respect of each such service. Each of the ‘Tax Invoice & Statement of Services’ received by Mr Diwan in respect of the two payments he made to Mr Chandwani lists a series of activities and a total sum. Neither sets out the particulars of each service performed nor the charge made in respect of each such service. 6 Mr Chandwani probably means s 313 of the Migration Act, not s 287. 7 Submissions by Oz Legal Migration Pty Ltd dated 5 November 2018 prepared by lawyer Mr Dave Hadley at paragraphs 8 and 11. 8 The relevant period is 28 days. -- 6 of 8 -- 7 [28] There was no evidence tendered to the Tribunal to demonstrate that the third limb of the requirement, namely for Mr Diwan to receive a statement from Mr Chandwani of services within 28 days after a final decision was made about the visa application, to which the immigration assistance related, was satisfied. [29] Even assuming that each of the points raised by Mr Chandwani above in paragraph [23] are true, they fail to address the central question: has Mr Chandwani satisfied the requirements of s 313 of the Migration Act by providing Mr Diwan with a statement of services in each case that sets out the particulars of each service performed and the charge made in respect of each such service and, further, with a statement of services within 28 days of the decision by the government to refuse his visa? [30] Mr Chandwani appears to address this question by arguing that the combined effect of the Migration Agent Client Agreement and the invoice describe the fee type, fee estimate, payment terms, stages, and the amounts to be charged and paid.9 However the Migration Agent Client Agreement sets out the services that may be provided by the migration agent and their respective costs, but does not, and cannot, represent a statement of services actually rendered, which is the essence of the statement of services required. Nor does the Tax Invoice & Statement of Services rendered on Mr Diwan by Mr Chandwani constitute a statement of services that sets out the particulars of each service performed and the charge made in respect of each such service. It represents simply a total cost for the ‘block of work’ involved. [31] Finally, Mr Chandwani offered no evidence to demonstrate that he provided Mr Diwan with a statement of services within 28 days after a final decision was made about Mr Diwan’s visa application. This, alone, would be sufficient to activate Mr Diwan’s entitlement to recover as a debt the money he paid to Mr Chandwani. [32] Individuals seeking the assistance of a migration agent are often vulnerable people that have limited knowledge of either the process involved in obtaining an Australian visa or of the law, and it is clear that Parliament has inserted protections in the Migration Act to enforce high standards of conduct on migration agents for the purpose of protecting vulnerable persons. [33] I am satisfied to the civil standard of proof that Amit Chandwani has failed to comply with the requirements in respect of supplying Parshant Diwan with a statement of services as set out in s 313 of the Migration Act and that, as a consequence, Mr Diwan is entitled to recover the sums paid to Mr Chandwani as a debt due and payable. [34] Being a debt, Mr Diwan is entitled to interest from the date on which he paid the money to Mr Chandwani. Mr Diwan is also entitled to recover his bailiff costs, and he is awarded his filing fee as a cost. Decision [35] The Tribunal makes the following decisions in this matter: (a) Amit Chandwani is to pay Parshant Diwan $13,800.00 within 30 days. 9 Respondent’s final submissions dated 5 November 2018, par 12. -- 7 of 8 -- 8 (b) Parshant Diwan is entitled to interest calculated at the Supreme Court scale from the dates on which he paid the money to Amit Chandwani up to the date of this decision. This amounts to $2,725.13. (c) Parshant Diwan is entitled to recover his bailiff cost of $63.10. (d) Parshant Diwan is awarded the cost of his filing fee of $326.80 in this matter. [36] In total, Amit Chandwani is to pay Parshant Diwan $16,915.03 within 30 days. -- 8 of 8 --