Frugtniet and Migration Agents Registration Authority [2016] AATA 299 (11 May 2016)
Division: GENERAL DIVISION
File Number: 2014/5940
Re: RUDY FRUGTNIET
APPLICANT
And:MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 11 May 2016
Place Melbourne
The Tribunal decides to:
affirm the decision of the respondent dated 6 November 2014 to cancel the applicant’s registration as a migration agent.
………….[sgd]…………….
Deputy President
CATCHWORDS – MIGRATION AGENTS REGISTRATION – review of respondent’s decision to cancel applicant’s registration as migration agent – whether applicant knew application for registration was false or misleading in a material particular – whether applicant is not a person of integrity or otherwise not a fit and proper person to provide immigration assistance – whether applicant failed to comply with the Migration Agents’ Code of Conduct – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 37(1)
Migration Act 1958: ss 276, 276(1), 276(2), 276(2A), 276(3), 280(1), 281, 282, 282(1), 282(2), 282(4), 282(5), 286, 287, 287(3), 288, 288(1), 288A, 288B, 289(1), 289(2), 289(3), 289(4), 290(1), 290(2), 291, 292, 299(1), 300(1), 300(4), 300(5), 300(6), 303, 303(1)(a), 303(1)(d), 303(1)(f), 303(1)(h), 305C, 305C(2), 305C(3)Migration Agents Regulations 1998 Sch 2 cll 2.1, 2.9, 2.9A, 2.17, 2.19
CASES
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11
Confidential and Commissioner of Taxation [2012] AATA 178; (2012) 88 ATR 222; 2012 ATC ¶1-044
Frugtniet v Board of Examiners [2002] VSC 140Frugtniet v Board of Examiners [2005] VSC 332
Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178
Frugtniet v Tax Practitioners Board [2015] FCA 1066
Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; 32 ALJR 395
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; 85 ALJR 533; 276 ALR 375Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596
Lilienthal v Migration Agents Registration Authority [2002] FCA 93; (2002) 117 FCR 558; 44 AAR 371
Maxwell v Dixon [1965] WAR 167 at 169
New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23; 50 ATR 267
Re Civiti and Secretary, Tax Agents' Board of Victoria [1990] AATA 250; (1990) 21 ATR 3781; 90 ATC 2039
Re Dowling and Secretary to Department of Health [1985] AATA 237; (1985) 8 ALD 171Re Frugtniet and Australian Securities and Investments Commission [2015] AATA 128
Re Frugtniet and Taxation Practitioners Board [2014] AATA 766
Re Frugtniet and Travel Agents Licensing Authority 1995/32920
Re Lobo and Department of Immigration and Citizenship [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304
Re Taylor and Department of Transport [1978] AATA 64; (1978) 1 ALD 312
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR…
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- Case
- [2016] AATA 299
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CaseChat Overview and Summary
The Tribunal was required to determine whether Mr Frugtniet had knowingly submitted a false or misleading application for registration. It also had to assess whether he possessed the requisite integrity and was a fit and proper person to hold registration, and whether his conduct breached the Migration Agents Code of Conduct. These determinations were to be made in light of the evidence presented, including statements from individuals whose purported documentation was submitted by Mr Frugtniet.
The Tribunal's reasoning focused on the evidence concerning documents submitted by Mr Frugtniet in support of an application to Trades Recognition Australia. Specifically, the Tribunal considered a letter purportedly from a Mr Glenn William Evans, a chef and director of Café Miro. Mr Evans provided a statement asserting that the letter, including its signature, content regarding employment and training, and associated payslips and payment summaries, was fabricated. He stated that the business had been sold prior to the date of the letter and that the documentation methods described were not those used by his business. The Tribunal also referenced the relevant provisions of the Migration Act 1958 (Cth), particularly section 276, which defines what constitutes "immigration assistance," and noted exclusions for certain types of clerical or informational support.
The Tribunal affirmed the decision of the Migration Agents Registration Authority to cancel Mr Frugtniet's registration.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Subject to certain qualifications that do not apply in this case, a person who is not a registered migration agent must not give immigration assistance.[1] He or she must not ask for, or receive, any fee or reward for giving immigration assistance[2] or immigration representations.[3] A person gives “immigration assistance” in the circumstances set out in s 276. I will begin with ss 276(1), (2) and (3):[1] Migration Act; s 280(1)[2] Migration Act; s 281[3] Migration Act; s 282“(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 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.(2A)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 request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or(aa)preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or(b)advising the other person about making a request referred to in paragraph (a) or (aa).”Section 276(3) excludes from the scope of ss 276(1), (2) and (2A) assistance such as clerical work, translation or interpretation services or advice that a person must apply for a visa or in the form of information produced by a third party and passed on without comment or explanation.