Frugtniet v Migration Agents Registration Authority - [2016] AATA 299

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 140
Frugtniet 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 375
Law 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 171
Re 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 345; 103 ALD 467; 82 ALJR 1147
Singh v Minister for Immigration and Citizenship [2013] FCA 166; (2013) 141 ALD 310
Stasos v Tax Agents’ Board of New South Wales [1990] FCA 379; (1990) 21 ALD 437; 21 ATR 974; 90 ATC 4950

OTHER MATERIALS
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
REASONS FOR DECISION

Mr Frugtniet was first registered as a migration agent on 28 October 1996. Each year, he applied for repeat registration. His last application was signed 5 November 2013 and made on 6 November 2013. As the Migration Agents Registration Authority (MARA) did not make a decision on his application within ten months of the expiry of his previous registration, his application was taken to have been granted from the end of that period i.e. from 7 November 2014. On 6 November 2014, a delegate of MARA decided to cancel Mr Frugtniet’s registration under s 303(1)(a) of the Migration Act 1958 (Migration Act). It did so after finding that Mr Frugtniet knew that his application for registration was false or misleading in a material particular, that he is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance and that he has not complied with several clauses of the Code of Conduct. Consistently with s 292, the consequence of MARA’s decision is that Mr Frugtniet cannot be registered as a migration agent at any time within five years of the date of the cancellation. Mr Frugtniet has applied for review of MARA’s decision. I have decided to affirm it.

MATTERS ON WHICH MARA RELIES

On behalf of MARA, Mr Rogers indicated that it would rely on ss 303(1)(d), (f) and (h) of the Migration Act to support its submission that Mr Frugtniet’s registration as a migration agent should be cancelled. In summary, the behaviour on which it relies under each provision is as follows:
(1)s 303(1)(d): application for registration known by him to be false or misleading in a material particular
(a)Mr Frugtniet lodged an application for repeat registration as a migration agent in 2013 knowing it to contain a false or misleading statement or statements.
(2)s 303(1)(f): agent is not a person of integrity or otherwise is not a fit and proper person to give immigration assistance
(a)Mr Frugtniet failed to gain admission as a legal practitioner.
(b)Mr Frugtniet lodged an application for repeat registration as a migration agent in 2013 knowing it to contain a false or misleading statement or statements.
(c)Matters relating to the conviction of a person under the Criminal Code Act 1995 (Criminal Code).
(3)s 303(1)(h): his failure to comply with the Code of Conduct set out in Schedule 2 of the Migration Agents Regulations 1998 (Regulations).
(a)Facts found by the Victorian Civil and Administrative Tribunal (VCAT) and by the Trades Recognition Authority (TRA).

LEGISLATIVE FRAMEWORK

Registration as a migration agent

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.
A person who is not a registered migration agent may not ask for, or receive, any fee or other reward for making immigration representations.[4] Unless the regulations prescribe otherwise,[5] for the purposes of s 282:
[4] Migration Act; s 282(1)
[5] Migration Act; s 282(5)
“… a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department:
(a)on behalf of a visa applicant about the application for the visa; or
(b)on behalf of a cancellation review applicant about the cancellation review application; or
(c)on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or
(d)on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship; or
(e)on behalf of a person who has made (or is proposing to make) 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 that person), about the request; or
(f)on behalf of a person who has made (or is proposing to make) 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), about the request.”[6]

[6] Migration Act; s 282(4)

An individual may be registered as a migration agent under s 286. Under s 287, MARA must keep a register known as the Register of Migration Agents (Register) showing for each agent the details specified in s 282(2). Those details include particulars of any suspension of an agent’s registration, of any caution given to the agent and of any other prescribed matter. In addition, MARA must keep records to show what was in the Register at any particular time including particulars of any cancellation or suspension of a registered migration agent’s registration or of any caution given to that agent.[7]
[7] Migration Act; s 287(3)

An individual may apply to MARA to be registered as a migration agent.[8] Sections 288, 288A and 288B set out the procedure that must be followed. Subject to qualifications in ss 289(3) and (4) that are not relevant, s 289(1) requires MARA to register an applicant by entering his or her name in the Register unless prohibited by Part 3 of the Migration Act. It must do so as soon as possible.[9]
[8] Migration Act; s 288(1)
[9] Migration Act; s 289(2)

In so far as it is relevant, s 290(1) provides:
“An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)…”
Sections 290(1)(a) and (b) must be read with s 290(2):
“In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a)the extent of the applicant’s knowledge of migration procedure; and
(b)any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i)a fit and proper person to give immigration assistance; or
(ii)a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d)any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e)any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f)any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(g)any bankruptcy (present or past) of the applicant; and
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.”

An applicant must not be registered within five years of cancellation of his or her registration if it has been cancelled under ss 303, 306AG or 306AGAC.[10] If a person has been refused registration in the previous 12 months before his or her application, he or she may not be registered. That is so whether the person is a first time applicant or an applicant for repeat registration.[11]

[10] Migration Act; s 292

[11] Migration Act; s 291

The registration of a registered migration agent lasts for 12 months after the registration.[12] If a registered migration agent makes a registration application and pays any registration application fee that is payable but MARA has not decided the application before the migration agent’s current registration expires, that registration continues past that date of expiration (expiry day).[13] The registration continues until one of three things happens: MARA decides the application; it suspends or cancels the registration; or ten months have passed since the expiry day.[14] If, before the end of that ten month period, MARA has not decided the registration application or decided to suspend or cancel the agent’s registration, then the application is taken to have been granted at the end of that period. That is the effect of s 300(5) and, under s 300(6), the registration is treated as having taken effect at the end of the expiry day.
[12] Migration Act; s 299(1)
[13] Migration Act; s 300(1)
[14] Migration Act; s 300(4)

Cancellation of registration

Section 303 of the Migration Act is concerned with disciplining registered migration agents. Section 303(1) is relevant and provides:
“The Migration Agents Registration Authority may:
(a)cancel the registration of a registered migration agent by removing his or her name from the register; or
(b)suspend his or her registration; or
(c)caution him or her;
if it becomes satisfied that:
(d)the agent’s application for registration was known by the agent to be false or misleading in a material particular; or
(e)the agent becomes bankrupt; or
(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g)an individual related by employment to the agent is not a person of integrity; or
(h)the agent has not complied with the Code of Conduct prescribed under section 314.
Note 1:The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.
Note 2:If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.”

If MARA is considering making a decision under s 303 to suspend or cancel a registered migration agent’s registration, s 305C gives it the power to require him or her to provide it with prescribed information or prescribed documents. It exercises the power by giving the agent a written notice in accordance with ss 305C(2) and (3).

The Code of Conduct (Code of Conduct), to which s 303(1)(h) refers, is set out in Schedule 2 to the Migration Agents Regulations 1998 (Regulations). They have been amended on a number of occasions over the years. When MARA made its decision, they had been last amended in 2006. Since then, there have been two further sets of amendments. Reference is made in these reasons to the Code as amended with effect from 1 October 2006 (2006 Code) and the Code as amended with effect from 1 January 2012 (2012 Code).

BACKGROUND

In this section of my reasons, I have set out the history of disciplinary actions that have taken place in relation to Mr Frugtniet as well as to other matters in which he has been involved. In doing so, I have set out only those matters that are not in dispute. So, for example, it is not in dispute that Mr Frugtniet has unsuccessfully applied for admission as a legal practitioner. Any findings of fact that I have set out in this section of my reasons are only the findings of fact made by the relevant court or tribunal having carriage of the matter. I have referred to the relevant passages of the evidence referring to these matters.

Complaint published to Mr Frugtniet by MARA on 19 July 2001

In his statement, Mr Frugtniet referred to MARA’s investigation of a complaint made against him in 2002. Mr Frugtniet took advantage of the opportunity MARA gave him to respond to the matters raised by the complaint. He responded on three separate occasions. MARA advised him of the outcome of its deliberations in a letter dated 12 February 2003:
“… You are advised that the Authority has decided that at this stage no further action will be taken regarding this complaint.
However, the Authority reminds you that the legislation requires you to declare any charges other than spent convictions and you are required to declare them in the future. Should further information regarding this matter come to the attention of the Authority or should the content of this complaint demonstrate a pattern of behaviour which is disclosed in other complaints then the Authority may take this matter into account in future deliberations.
Thank you for your cooperation in this matter.”[15]
[15] Exhibit A; Annexure RF6

Failure to obtain admission as a legal practitioner

On two occasions, Mr Frugtniet has applied to the Board of Examiners (BoE) for admission as a legal practitioner. He has been unsuccessful on each and has appealed to the Supreme Court of Victoria (Supreme Court). I will set out the main points made in the judgment delivered in each on appeal.
A. Frugtniet v Board of Examiners [2002] VSC 140
The earlier was that of Pagone J in Frugtniet v Board of Examiners[16] in which Pagone J had heard an appeal from a decision of the Board of Examiners (BoE) declining to find that Mr Frugtniet was a fit and proper person for admission to legal practice. At the time, admission was governed by the Legal Practice Act 1996 (Vic) (LP Act) and the Legal Practice (Admission) Rules 1999 (Vic) (LPA Rules) made under s 337 of that Act. Rule 4.01(1)(c) of the LPA Rules required a local applicant for admission to be “… of good reputation and character and a fit and proper person to be admitted”. It is for the local applicant to satisfy the BoE or, on appeal, the Supreme Court that he or she is such a person.[17]
[16] [2002] VSC 140
[17] 2002] VSC 140 at [2]

The pro forma affidavit attached to the LPA Rules and completed by Mr Frugtniet when he applied for admission includes a paragraph asserting that he had:

“… made full disclosure in writing to the Board of Examiners of every matter which is relevant to consideration of my fitness for admission to legal practice, this disclosure (if any) including but not being confined to any formal charges of criminal offences [if otherwise, state particulars].”[18]

[18] LPA Rules; Schedule 8; [7]

In a letter dated 20 August 2001, Mr Frugtniet advised the BoE that he had, on 24 November 1997, been fined $1,000 without conviction for having obtained property by deception. The charge related to the selling of blacklisted airline tickets through a travel agency conducted by his wife. A few days later, on 28 August 2001, he swore an affidavit in support of his application for admission in which he deposed to the fine and gave some details about it. On 17 September 2001, the BoE deferred its consideration of his application because it was not satisfied that Mr Frugtniet had given it sufficient information about the charge he had disclosed. After Mr Frugtniet had lodged a supplementary affidavit sworn on 9 October 2001 and provided further information regarding the charge, the BoE determined that Mr Frugtniet was not a fit and proper person for admission to practice.

Justice Pagone found that the BoE had never been told of the following:
(1)a conviction in the United Kingdom on 4 January 1978 on several counts of handling stolen goods, forgery, obtaining property by deception and theft for which he was sentenced to a term of imprisonment (UK charges);
(2)charges in the early 1990s for perjury arising from evidence given by Mr Frugtniet to the Travel Agents Licensing Authority (TLA) when he denied that he had ever been convicted of a criminal offence (perjury charges). Mr Frugtniet was acquitted of the charges in the County Court on the basis that he held an honest and reasonable belief at the time that he gave evidence to the TLA that he understood that the convictions were spent convictions and of no effect.
(3)charges in 1998 in relation to six counts of theft and three counts of attempted theft as an employee of the ANZ Bank (ANZ charges). Mr Frugtniet was acquitted of those charges.
Before Pagone J, Mr Frugtniet had given evidence that he believed that he was only required to reveal to the BoE those charges that were pending and not those of which he had been acquitted. For that reason, he had not revealed either the perjury charges or the ANZ charges. His Honour found, however, that it was clear from the documents available to Mr Frugtniet, including the pro forma affidavit that he used, that he was required to disclose all charges against him including those that had led to his being acquitted. On those charges, Pagone J found that Mr Frugtniet had not sufficiently explained the facts to satisfy him that he had discharged the burden upon him to show that he was a fit and proper person to be admitted to practice.
Justice Pagone came to the same conclusion regarding the UK charges. He concluded that the successful defence to the perjury charges in the County Court had been based on the state of Mr Frugtniet’s mind at the time and not that he had been truthful. Mr Frugtniet, Pagone J continued, had not made any attempt to determine whether the UK convictions were required to be disclosed under the LPA Act. He had not made any attempt even though the perjury charges arose from Mr Frugtniet’s earlier denial of the UK charges and it had been made clear to him by Judge Jones in the County Court that, unlike the United Kingdom, there is no Victorian legislation enabling convictions to be regarded as “spent” and treated as having never occurred.

In concluding that he was not satisfied that Mr Frugtniet had satisfied his burden of proof, Pagone J said:
“The evidence before me does not establish to my satisfaction that the applicant is now a fit and proper person for admission. The way in which details of the perjury charges, the ANZ charges and, more particularly, the UK convictions have come to light in this proceeding have not left me with sufficient confidence in the applicant. His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practice. It was not an obligation merely to list convictions or charges, but was an obligation to inform the decision maker of everything that could bear upon the judgment that needed to be made about him and his character. His task was not to select or edit from his life’s experiences only some events that might be relevant to the question, but to disclose every matter that might fairly assist in deciding whether the applicant was a fit and proper person at the time of admission. Revealing more than might strictly be necessary counts in favour of an applicant; especially where the disclosure still carries embarrassment or discomfort. Revealing less than may be necessary distorts the proper assessment of the applicant and may itself show an inappropriate desire to distort by selection and screening of relevant facts.
The applicant accepted during his submissions to me that the perjury charges, the ANZ charges and the UK convictions were matters that ought to have been disclosed and considered in deciding whether he was a fit and proper person for admission to practice. The Board of Examiners might itself have found in his favour if he had candidly laid out these matters, and if he had done so, there would have been more prospect of the present appeal succeeding. However, these were matters that only came to light upon investigations undertaken by the Board itself after its adverse decision, after the applicant’s institution of this appeal and after the applicant had filed his first affidavit in this court in support of the appeal. In those circumstances I have no present confidence that the applicant would have disclosed these matters if they had not come to the Board’s knowledge and had the Board not tendered the evidence in the proceeding before me.
The failure by the applicant to inform the Board of Examiners of the UK convictions is to my mind significant. The applicant’s explanation that they were “spent” convictions does not persuade me when that explanation is viewed in the light of the applicant’s own experience during the perjury charges trial, the terms of the ruling by Judge Jones and a letter tendered by the applicant from the Secretary of the Department of Immigration and Ethnic Affairs to Commissioner Kevin O’Connor dated 6^th December 1994. What I find significant is not that these convictions occurred, but that as a matter of the applicant’s recent conduct, indeed contemporary conduct, he had failed to volunteer the fact of the convictions or the facts which had given rise to the convictions. I am not satisfied that these failures have been satisfactorily explained or justified by the applicant on the materials which he has put to me.
The failure to inform the Board of Examiners of the fact of the perjury charges and of the ANZ charges causes me to have similar doubts about the applicant’s current fitness for admission. Charges may be laid incorrectly, and acquittals must be respected as such, but the facts which give rise to the charges may (not “necessarily”, but “may”) bear upon a person’s fitness to practice. It is not for the applicant to usurp the role of the decision maker (whether the decision maker be the Board of Examiners or the Court) by deciding that the charges or the facts which gave rise to them will not assist in deciding that person’s fitness to practice. The applicant should have been the source of the Board’s and of the Court’s knowledge of these matters, and his omission to mention them to the Board, and his omission to raise them in the proceedings, before me, are both matters that prevent me from accepting that he has shown himself now to be a fit and proper person for admission. His explanations about the omissions do not persuade me otherwise.”[19]

[19] [2002] VSC 140 at [11]-[14]

B. Frugtniet v Board of Examiners [2005] VSC 332

The proceedings before Gillard J arose out of a further application by Mr Frugtniet to be admitted to practice on 27 July 2004. The BoE again refused his application on the basis that it was not satisfied that he was a fit and proper person to practise. The appeal to the Supreme Court was conducted as a hearing de novo so that Gillard J was not concerned with whether the BoE had made an error of fact or law but with coming to his own decision on the evidence before him. The onus rested upon Mr Frugtniet to disclose any matters which were relevant to the question of his reputation and character and whether he was a fit and proper person to be admitted to practice. The obligation was not confined to convictions for criminal offences but required the provision of any information which included any charges for criminal offences.

The judgment of Gillard J sets out Mr Frugtniet’s history in greater detail than is found in the judgment of Pagone J. That would seem to follow from the fact that Mr Frugtniet was represented in the later case but not in the earlier. Be that as it may, I will mention a little of that detail and add convictions and charges that may not have been brought to the attention of Pagone J in the earlier appeal:
(1)UK charges
“… The English convictions occurred in relation to activities over a two year period according to an affidavit sworn by him on 7 March 2002, namely, during the period from 1974 to 1976 when he was aged between 19 and 21 years. Each charge involved dishonesty and some involved deception. He has sworn on a number of occasions that he got into bad company, was naïve and vulnerable and this explains his criminal conduct over this period. However, it is noted that he pleaded guilty to four charges of obtaining a benefit payment from the Department of Health and Social Security by falsely representing that his children were living with him and his wife. He informed the Court on this appeal that he was not married at the time and did not have any children. This raises a real question as to his assertion that he was led by others. Indeed, he admitted on this appeal that one of those who was also involved in criminal conduct was his brother. At the age of 22 he was sentenced to four years’ gaol and served two years. His level of criminality was serious and grave as the offences occurred over a two year period. This course of conduct, albeit at a young impressionable age, raises a presumption against his fitness for the profession of lawyer.”[20]
[20] [2005] VSC 332 at [18]

(2) Airline ticket charges
Mr Frugtniet appeared at the Broadmeadows Magistrates’ Court on 24 November 1997 on five charges of obtaining property by deception in the period from 1994 to 1996 (Airline ticket charges). Four of the charges were withdrawn. Mr Frugtniet pleaded guilty to the fifth and was fined $1,000 without a conviction being recorded. The alleged offences concerned airline tickets acquired unlawfully in 1991 and sold by Mr Frugtniet to clients at his wife’s travel agency during 1994 to 1996 for travel with Lufthansa and KLM.[21]
[21] [2005] VSC 332 at [17]

(4) Perjury charges
In relation to his false statements made to the TLA on 21 and 22 May 1992, Mr Frugtniet repeated his denials that he had been convicted in the United Kingdom to the Victorian Civil and Administrative Tribunal (VCAT). He did so in evidence given on 20 November 1992 when his former wife applied to VCAT for review of the cancellation of her licence as a travel agent.[22] The three counts of perjury arose from the evidence he gave on each of those days. The perjury charges were heard by Judge Jones in the County Court in May 1998.[23]
[22] Re Frugtniet and Travel Agents Licensing Authority 1995/32920
[23] [2005] VSC 332 at [17]

(5) 1999 Declaration to MARA
“His evidence concerning his disclosure to the Migration Agents Registration Authority (‘MARA’) demonstrated that he did not appreciate the seriousness of making a false declaration. He told the Board of Examiners last year that he did reveal in each annual registration application all matters concerning his criminal conduct from 1996 onwards. … His evidence is, to say the least, highly doubtful. By a document declared on 26 October 1999 he applied for re-registration as an agent from the year October 1999 to October 2000. In the document which he completed, he was asked the following question:
‘11.Are you the subject of any criminal charges still pending before a court, or have you ever been convicted of an offence which is not spent? Refer to Part VIIC Crimes Act 1914 (Cth) for a definition of a spent conviction.
Noⓧ Yes ™
If yes, please attach details including dates.’

The appellant put a cross in the ‘No’ circle. He supported the document with a statutory declaration in which he stated that the information he had provided ‘is complete, correct and up to date in every detail’.
The date of the declaration is 26 October 1999. On no view could that answer be correct. He admits as much now. At that time he was facing nine charges concerning his employment at the ANZ Bank. The answer to the question: ‘Are you the subject of any criminal charges still pending before a court?’ should have been ‘Yes’. When asked by the Court as to his explanation, the appellant prevaricated, did not initially answer the question but referred to the fact that the matter was raised years later by MARA, he gave them an explanation and no further action was taken by the authority. Eventually he admitted to the Court that his answer was wrong and he should have answered ‘Yes’. Another matter of concern is that he did not appreciate the importance of making a false declaration. He informed the Court that he had in fact in a separate document told MARA of the charges. He was unable to produce a copy and MARA did not have any copy. I have grave doubts about his evidence. But as was put to him, if he was revealing this information to MARA in another way, then his answer should have been ‘Yes’, and reference back to an earlier communication. The way he gave evidence in relation to this issue raises considerable concerns about his honesty and more importantly whether he is prepared to be frank about his past indiscretions. His seemingly ignorant attitude to the importance of a statutory declaration is also a matter of concern. As the Court asked him ‘Would you advise a client to do what you did in the circumstances?’ He said ‘No’.
Another matter of considerable concern over this whole episode concerns his explanation to MARA some years later. The failure to reveal relevant information to MARA was raised by the authority in 2002. The appellant forwarded a nine page letter including attachments explaining his views dated 14 August 2002. He noted that the authority did not appear to have any documents sent by him. He was unable to produce copies. One might think that a careful man, bearing in mind his history during the 1990’s concerning the perjury charges, would have been very careful in answering the question in his application form and more importantly if he had apprised the authority earlier, would have kept copies of the correspondence. A matter of concern is found on page 5 of his long letter in which he sought to explain the ANZ charges. He said the following:
“On or about May 1998 I was charged with offences of theft and obtaining by deception on the basis that I allegedly provided information that enabled others to commit theft whilst I was employed by the ANZ Bank. It would be a monumental understatement if I said that I was not affected, but I held to the belief that when individuals seek to use their position to advance themselves and pursue the individual, without first seeking to elicit the truth, then good will at some stage prevails over evil. I was further heartened by the fact that this was pay back by certain individuals, as a jury of my peers had previously acquitted me of the frivolous perjury charges, thereby vindicating my position.” Emphasis added).[24]

(4) Centrelink charges
On 15 April 2003, Mr Frugtniet was charged with defrauding the Commonwealth of Australia through Centrelink between March 2008 and November 2000 (Centrelink charges). It was alleged that, while receiving Job Search Allowance and Newstart Allowance, he was working in the period from 27 April 1998 to 7 July 2000 and earning $1,482 gross per fortnight. The charges were dismissed on 11 May 2004.[25]

[24] [2005] VSC 332 at [45]-[48]

[25] [2005] VSC 332 at [17]

Gillard J said in his judgment of Mr Frugtniet:
“In cross-examination in the present matter, the appellant was exposed as a person who was loose with the truth, had sworn affidavits which were inconsistent and misleading. He sought throughout to exculpate himself in respect of his admitted criminal conduct and on occasions his attempts were misleading. I accept he is entitled to show, if he can, that his conduct was not bad or his level of criminality slight, but if he distorts the facts to achieve his goal, this reflects adversely upon him.
Some of his evidence I do not accept as truthful or accurate. He struck me as a witness whose first move was to think of an answer which would help his cause rather than being frank and honest. He told the Court that he was sorry and remorseful for his past conduct, but I am not persuaded that he is an honest person, a person of good character, and fit and proper person to be admitted to practise as a barrister and solicitor and officer of this Court. In reaching that conclusion, I rely upon his past, the way the appellant gave evidence, his attitude to obvious wrongdoing which he was not prepared to candidly accept was very wrong, his attempts to mislead the Court and his looseness with the truth.”[26]
[26] [2005] VSC 332 at [37]-[38]

MARA’s consideration of registration following Court of Appeal judgment

Mr Frugtniet referred to this in his written statement. On 19 December 2005, MARA had sent him a notice stating that it was considering sanctioning him for the following reasons:
“- that in 2001 and 2003 you had submitted applications for registration that were known by you to be false or misleading in a material particular as you had failed to disclose that you were the subject of an investigation or inquiry by Centrelink, and had failed to disclose that you were the subject of criminal proceedings
-in addition, your 2003 application was false or misleading as you had not declared that you were also known by the name ‘Randolph Frugtniet’
-that you were not a person of integrity or otherwise a fit and proper person to give immigration assistance.”[27]
[27] Exhibit A; Annexure RF6

Mr Frugtniet had responded to MARA regarding these matters on 31 January 2006. Regarding the Centrelink investigation and subsequent criminal proceedings, Mr Frugtniet submitted that each had been declared to MARA in both his 2002 and 2004 applications. Mr Frugtniet also denied having represented himself in any capacity using a name other than his own and pointed out that the criminal charges following from Centrelink’s investigation had been dismissed and costs awarded against the informant. In its letter dated 26 July 2006, MARA advised Mr Frugtniet that:
“Following your submissions, the Authority is not satisfied that you submitted applications for registration in 2001 and 2003 that were known by you to be false and misleading in a material particular.
Further, the Authority is not satisfied that you are not a person of integrity or not a fit and proper person to give immigration assistance.
Accordingly, as mentioned above, the Authority has decided to take no further action at this stage.
Please be aware that if further information about this matter comes to our attention or if the content of this information demonstrates a pattern of behaviour that is disclosed in other complaints or information, we may take this matter into account in future deliberations.”[28]

[28] Exhibit A; Annexure RF6

Application to Trades Recognition Australia

Mr Bastola, who lodged a complaint about Mr Frugtniet, was named in an application to the Trades Recognition Australia (TRA). He had been charged with, and pleaded guilty to, one count of acting with the intention of dishonestly influencing a Commonwealth public official in the exercise of that official’s duties as a public official contrary to s 135.1(7) of the Criminal Code Act 1995 (Criminal Code). He was discharged without conviction under s 19B(1)(d) of the Crimes Act 1914.

The charge related to the application that had been lodged with the TRA on 16 August 2009. It acknowledged the application in a letter on 20 August 2007. That letter advised that the time taken to process the application depended on whether the Complainant’s occupation was on the Migration Occupations in Demand List.[29] The Complainant’s occupation was shown in the application as Diploma of Hospitality Management and Certificate in Hospitality (Commercial). Details were given of the educational institution at which his client had obtained his qualifications. A list was attached setting out five separate periods during which his client had worked at a café named as Café Miro, together with a statement of the work that he had undertaken during those periods. The first period began on 1 December 2005 and the fifth began on 1 August 2007 and was continuing at the date of the letter i.e. 9 August 2007. Various documents were attached to the application. Among them was a letter signed by “Mr Glen Evans” who described himself as “Director and Executive Chef” of Café Miro Melbourne Pty Ltd (Café Miro PL) as well as various PAYG Payment Summaries and a letter signed by Mr Bastola. The application was successful.
[29] T documents; T19 at 256

Mr Bastola made a complaint to MARA about the TRA application in a letter dated 30 August 2011. He identified the TRA form, work experience certificate from the Café Miro, pay slips and a memorandum from himself to the TRA. Mr Bastola said that none of the handwriting on the forms was his handwriting and that he had never seen any of the documents before he requested them under the Freedom of Information Act 1982.[30]
[30] T documents; T19 at 253-254

On 6 May 2009, TRA forwarded a fraud referral to the Investigation Branch of the Department of Education, Employment and Workplace Relations (DEEWR). As a result of that investigation, TRA decided, on 29 November 2010, to revoke the Complainant’s successful assessment outcome.

Order that Mr Frugtniet is a disqualified person under the Legal Profession Act 2004

On 8 April 2011, Judge Jenkins, a Vice President of VCAT, made an order that Mr Frugtniet is a disqualified person for an indefinite period for the purposes of Division 3 of Part 2.2 of the Legal Profession Act 2004 (LP Act).[31] She did so after being satisfied that Mr Frugtniet had engaged in dishonest conduct of a serious nature that was, for the purposes of s 2.2.6(1)(b) of the LP Act, an act or omission that, had he been an Australian legal practitioner, might have resulted in a charge being brought in the VCAT. The practical effect of that order was that, subject to any qualifications prescribed in regulations, a local legal practitioner or a law practice in Victoria could not, without the approval of the Legal Services Board, employ Mr Frugtniet as a lay associate if it knew him to be a disqualified person.[32] Section 2.2.7 of the LP Act imposes a corresponding obligation on Mr Frugtniet not to become, or seek to become, a lay associate of a local legal practitioner or law practice, unless he first informs it of his disqualification. A “lay associate” of a law practice is an associate of the practice who is not an Australian legal practitioner.[33] Among others, an “associate” of a law practice includes an agent or employee of the law practice who is not an Australian legal practitioner.[34]
[31] Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596
[32] LP Act; s 2.2.7(1)(a)
[33] LP Act; s 1.2.4(2)(b)
[34] LP Act; s 1.2.4(1)(b) and (c)

Judge Jenkins found that, on 25 May 2010, Mr Frugtniet had lied to a member of Counsel and to a Magistrate by holding himself out to be a legal practitioner at the Magistrates’ Court at Werribee. In relation to Counsel, she found that Mr Frugtniet had confirmed with him that he was a sole practitioner and a solicitor entitled to practice.[35] She did so after analysing the evidence given by Counsel and by Mr Frugtniet.
[35] [2011] VCAT 596 at [151]

The transcript of proceedings before the Magistrate recorded that Mr Frugtniet had said in response to his question regarding the firm for which he worked: “Sole practitioner, Your Honour.” When the Magistrate said “Sole practitioner?”, he replied “That’s right”. Later in the proceedings, he asked the Magistrate if he could get some “instructions” on an issue and then told her what his “instructions” were. She also found that Mr Frugtniet referred to his “clients”.[36] Judge Jenkins found, among other facts, the following:
“b. On the basis of the transcript of evidence before Magistrate Mellas on 25 May 2010 in the circumstances of the hearing, the magistrate would understand the reference to “sole practitioner” as only meaning “legal practitioner” and would not have taken the reference to sole practitioner as a sole practitioner in business of some other kind;
c.From the context, the Magistrate was clearly seeking to clarify the status of the person appearing before him;
d.The use of other words and expressions by the Respondent [such as “clients” and “obtaining instructions”] and the manner in which the Respondent knew to address the Magistrate, would have all confirmed in the mind of the Magistrate and Mr Lowry that the Respondent was appearing before the Court in the capacity of a solicitor entitled as of right to appear before the Court;
e.The Respondent Rudy Frugtniet has knowingly and intentionally or wilfully misrepresented himself to and misled Mr Lowry Barrister to believing he was a sole practitioner and solicitor entitled to engage in legal practice and appear as of right before the Magistrates Court on behalf of the plaintiffs; ”[37]
[36] [2011] VCAT 596 at [120]
[37] [2011] VCAT 596 at [158]

On appeal, the Court of Appeal allowed the appeal in part but not in respect of the findings made by Judge Jenkins leading to her making the order that Mr Frugtniet is a disqualified person under the LP Act.[38] It was in relation to Judge Jenkins’ finding that Mr Frugtniet had been in contempt of the Magistrates’ Court that the Court of Appeal allowed his appeal. It did so because the finding had been made on the balance of probabilities standard of proof and not beyond reasonable doubt.[39]
[38] Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178; Warren CJ, Nettle JA and Beach AJA
[39] [2012] VSCA 178 at [32]-[34]

Mr Frugtniet’s application for Repeat Registration dated 5 November 2013

When he completed Questions 29 and 30 of the Repeat Registration application he signed on 5 November 2013, Mr Frugtniet completed Questions 29 and 30 in the following way:
“29 To the best of your knowledge and belief: Have you been, or are you currently the subject of an inquiry or investigation that has not previously been declared to the Authority* by you, including those by:
∙a Government department or agency; or
∙a professional association; or
∙a corporate regulatory agency; or
∙a consumer protection organisation?
Nox
Yeso
30To the best of your knowledge and belief: Is any disciplinary action being taken, or has been taken, against you that has not previously been declared to the Authority by you?
Nox
Yeso”[40]
[40] T documents; T19 at 312

Had he answered each of those questions in the affirmative, Mr Frugtniet would have been required to provide further information. That information is described in the Checklist of attachments included in the application form in the following way:

“o

Q29

If Yes; attach the following information:
[41] T documents; T19 at 318
description of the matter investigated, dates, name of the department or agency, results of investigation, letter or other written evidence.

o

Q30

If Yes; attach the following information:
description of the disciplinary action, dates, name of the body undertaking the action, results of action, letter or other written evidence.”[41]

At the conclusion of the repeat registration application, Mr Frugtniet signed a series of eighteen statements under the heading “Part F – Declaration”. Three of those statements read:
“14. I declare that I am not aware of any finding, conduct or event which would effect [sic] my fitness to provide immigration assistance or which goes to my integrity (other than that which is disclosed herewith or previously disclosed); and
…
16.I declare that I am aware that it is a breach of clause 2.9A of the Schedule 2 of the Regulations for a registered migration agent to mislead or deceive the Authority, whether directly or by withholding relevant information. I am also aware that the Authority must consider such breach of the Code of Conduct specified in the Regulations, in accordance with the requirements of section 290 of the Act; and
17.I am aware that it is an offence under the Commonwealth Criminal Code 1995 for a person to give information or make a statement to a Commonwealth entity, knowing that the information or statement is either false or misleading or omits any matter or thing without which the information or statement is misleading (sections 136.1 and 137.1 of the Criminal Code Act 1995). I am aware that the penalty is imprisonment up to 12 months. …”[42]
[42] T documents; T19 at 319

ASIC ban on Mr Frugtniet’s engaging in credit activities

On 10 July 2014, the Australian Securities and Investments Commission (ASIC) permanently banned Mr Frugtniet from engaging in credit activities after it had found that he had provided misleading information and had not made full disclosure on a credit licence application. ASIC noted that Mr Frugtniet was a former director of Unique Mortgage Services Pty Ltd (UMS) and had formerly been its responsible manager, fit and proper person and key person for the purposes of its Australian credit licence. It found that he was not a fit and proper person to engage in credit activities and stated in a Media Release that its:
“… decision was based on Mr Frugtniet’s lack of full disclosure and misleading answers given in relation to questions on UMS’ application for a credit licence, as well as Mr Frugtniet’s adverse disciplinary history, which included his:
·     involvement in the breach of a company travel agent’s licence
·     making of a false declaration to the Migration Agents Registration Authority
·     two rejected applications to be admitted as a solicitor
·     making of false statements on Newstart allowance application forms
·     misrepresenting himself as a lawyer with standing to appear in court
·     conveyancing licence being cancelled, and
·     making of a false or misleading declaration to the Tax Practitioners Board.
ASIC found that Mr Frugtniet’s conduct is incompatible with the good character, honesty, integrity and judgement required of a person permitted to engage in credit activities.
…
On 29 July 2014, Mr Frugtniet filed applications in the AAT for a review of ASIC’s decision. …”[43]
[43] T documents; T18 at 238

A differently constituted Tribunal heard that application and, on 6 March 2015, affirmed ASIC’s decision.[44] Mr Frugtniet’s appeal from that decision to the Federal Court has been heard but a judgment is yet to be delivered.
[44] Re Frugtniet and Australian Securities and Investments Commission [2015] AATA 128; Senior Member Friedman
THE EVIDENCE
In this section of my reasons, I set out the evidence following the headings I have used in the “Background” section. I will make findings of fact under the heading of “Consideration of Issues” later in these reasons.
Application to Trades Recognition Australia
A. Evidence relating to documents annexed to Mr Bastola’s TRA application

The letter signed by Mr Evans as the “Director and Executive Chef” of Café Miro showed a telephone and a facsimile number as well as a GPO Box number, 959. Mr Frugtniet said that the GPO Box number, 959, was that of Unique Mortgage Services of which he was a director in 2007. At the conclusion of the letter, the writer said that he was available between certain hours from Tuesday to Friday and giving a mobile telephone number. Mr Frugtniet agreed with Mr Rogers that this mobile number is his mobile number and that, had anyone chosen to call Mr Evans, he or she would have been calling him. Mr Frugtniet rejected “in totality” that he had fabricated the reference written by Mr Evans. He also rejected the suggestion that he had any hand in the creation of the letter.

The documents lodged with the TRA include a statement made by “Glenn William Evans” who is a Chef. The statement was made on 24 May 2010. Mr Evans is now employed as a Trainer and Assessor and had been for the previous four years. Together with another person, Mr Evans is a director of Café Miro PL. Together, they operated Café Miro for some 12 years but sold the business in about October 2005. They kept the company and the name in case they wanted to go back into business. During the twelve years they conducted the business, they employed ten staff on either a full-time or part-time basis.

In his statement, Mr Evans said that he had not written the letter dated 9 August 2007 for the following reasons:
“∙ the font used on the Café Miro Melbourne P/L is not what I used;
∙I do not know nor do I recognise the name of … Bastola;
∙I did not train or have this person work for me;
∙I have never had a PO Box number nor do I recognise the PO Box … as belonging to anyone I know;
∙I do not recognise the phone number of 03 …, the fax number … or the mobile number …;
∙The business was sold and closed around October, 2005.
∙The signature on the document is not mine and I didn’t sign it.
∙All the hours said to have been worked are fictitious
∙The first paragraph on … [the letter] looks very similar to a newspaper review of our café that appeared under our name on a Google website”[45]
[45] T documents; T19 at 277

In relation to the payslips and payment summaries attached to the letter dated 9 August 2007, Mr Evans said in his statement:
“The next set of documents … were three fortnightly payslips. I have read the document and I can say that they are totally fabricated. We were a small business and whilst I had all my employees on the books and properly employed we didn’t provide the employees with pay slips. They were paid cash; tax was withheld and at the end of the year a group certificate was issued.
The next set of documents … purport to be payment summaries. I am able to say that these are totally fabricated. I never used computerised summaries. The Australian Taxation Office would issue me with a small number of group certificates which I would fill in by hand and then distribute to the various areas.”[46]
[46] T documents; T19 at 278

Ms Natalie Hilder, an employee of Australia Post, made a statement on 3 March 2011. She said that Australia Post’s records show that GPO Box 959 has been held in the name of Unique Mortgage Services Pty Ltd (Unique MS) since 8 December 2006. Ms Hilder attached a copy of the Agreement Detail Report kept by Australia Post in relation to GPO Box 959. It showed a mobile number for Unique MS. That number matched the number shown in the letter written by Mr Glen Evans. A telephone number for a landline is also shown in the Agreement Detail Report. It matches a telephone number given by Mr Frugtniet on his Application for Repeat Registration dated 5 November 2013.[47]
[47] T documents; T19 at 308

B. Mr Frugtniet’s Statement of Services & Fee Agreement: Tax Invoice

Mr Frugtniet produced a Tax Invoice under the heading of “Statement of Services and a Fee Agreement” that was dated 27 August 2007. The services requested were:
“Information on the Regulation of the Migration Advice Profession and Code of Conduct provided to client.
Prepare and lodge Migration Application for 880 Permanent Residence (class of visa) (includes taking of instructions, preparing application and detailed submissions, lodging application and continued representation on your behalf to the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA).”[48]
[48] Exhibit D at 1

A signature appears above the word “Client(s)” and the date of 27 August 2007. It appears below the statement: “I/We accept the above terms and conditions”.   The passage headed “Indemnity” began with a box that was to be ticked if applicable. There then followed a list and a statement:
“1.       Lodgement of invalid requests for Ministerial Intervention.
2.Lodgement of visas without any prospects of success and then seeking review in the Migration Review Tribunal.
3.Lodgement of on shore protection visa applications for clients with no prospects of success, where it appears the sole purpose is to have the clients remain in Australia.
If, in my professional opinion, I advise you that an application under the Migration Act or the Migration Regulations may be invalid and/or may be vexatious and/or may be grossly unfounded and/or may have no hope of success and you still instruct me to lodge the said application or request, by ticking the box and signing this acknowledgment you confirm that:
(a)      I have not encouraged you to lodge the application; and
(b)I have advised you that, in my opinion, the application is not likely to succeed; and
(c)you still wish to lodge the application.”[49]

A signature appeared below this passage above the heading “Client”.

[49] Exhibit D at 4

C. Mr Frugtniet’s evidence

The application to the TRA was dated 7 August 2007. It set out Mr Bastola’s relevant details and set out those of Mr Frugtniet as a person whom he wished to authorise to act on his behalf.[50] In giving evidence, Mr Frugtniet acknowledged that the details regarding his GPO Box, his fax number and his telephone numbers appeared to be, “to some degree”, his information. In cross-examination, he said that one of the numbers was his telephone number. When asked about a specific number shown on the form as his telephone number, Mr Frugtniet replied that he did not know about earlier times but it was not his number then. His email address was shown correctly.
[50] T documents; T19 at 257

They are, however, wholly false in the context of his not having received a telephone call or verified matters. Assistance in preparing a Pre-migration skills assessment applications is not properly described as “immigration assistance” as that term is defined in s 276 of the Migration Act. He had not himself been summonsed or convicted of any offence in relation to that application. No adverse inference should be drawn against him. A migration agent is required to complete Form 956 each time he or she begins to give immigration assistance. That form provides for the appointment of a migration agent and for termination of that appointment. There is no evidence that the Complainant authorised him to give immigration assistance. As Mr Bastola has not been called to give evidence, he has been denied the opportunity to cross-examine him.

In cross-examination, Mr Frugtniet said that he also has a GPO address but that was not mentioned on the form. He had other clients in 2007 whom he assisted to make applications to the TRA. Mail about them was generally sent to his GPO Box. He has suggested that Mr Bastola or an employee of Australia Post had interfered with his mail. In response to a suggestion by Mr Rogers that, if there were such a person, he or she would open all of his mail and not just that related to a specific applicant, Mr Frugtniet replied that he could not speculate. He could not speculate on how much mail had been opened or how it was done but he believed that particular applicant was in a position to tamper with his mail.

Mr Frugtniet emphasised that he had not received any telephone call or any facsimile or correspondence about the particular applicant. To his knowledge, he did not receive any correspondence from the TRA in relation to the application of this particular applicant. He did not see a copy of the reference and was given a copy of it by the applicant.

Mr Frugtniet refuted Mr Rogers’ proposition that it was implausible that the applicant for skills assessment had chosen to put on the application his, Mr Frugtniet’s, details. He rejected it saying that he did not provide immigration assistance and did not give the applicant a receipt or any of his contact details. He did know the applicant and had previously given him immigration assistance in relation to a visa application. He had completed an online visa application using information the applicant had given him. Included in that visa application was a statement that the applicant had made an application to the TRA. On that occasion, he had given him a receipt[51] as well as completing Form 496 and giving it to MARA notifying it in accordance with s 312 of the Migration Act that he had started to give immigration assistance. Had he received any communication by facsimile or otherwise, one might say that he had given immigration assistance. The facts are, he said, that someone else incorporated his details in the TRA application.
[51] Exhibit D

When the matter of the TRA’s investigation was raised with him in 2013, Mr Frugtniet said that he was aware that the TRA had not been legally appointed. He relied on the case of Singh v Minister for Immigration and Citizenship.[52] The fact that the TRA had not been legally appointed has caused him to suffer considerably. At the time of the TRA’s decision, he had been bringing a further application for admission as a legal practitioner. Unfortunately, he could not pursue his application.
[52] [2013] FCA 166; (2013) 141 ALD 310

Order that Mr Frugtniet is a disqualified person under the Legal Profession Act 2004

Mr Frugtniet said that his being prohibited from being admitted as a legal practitioner and his disqualification as a lay associate impacted on everything. He never was, and never intended to be, a lay associate. At no time has he been given the benefit of a reprimand, a caution or a supervisory order. He had said that he had lied, either by act or omission, when suggesting that he was a legal practitioner and he accepted unreservedly that what he had done was the wrong thing. There must be some finality to matters. Many legal practitioners are readmitted but are not called upon to regurgitate what happened. Mr Frugtniet said that he had gone to the Broadmeadows Magistrates’ Court to help friends on a single occasion. He lied. He suffered. A penalty was imposed. He has a family to keep and his business as a migration agent is his only business on which he supports his family. Clients have been in touch and one wanted him to attend the Migration Review Tribunal as it then was. He did attend but did not provide immigration assistance. The member sought certain things from him and he handed up a decision. Over the years, he said, he has had many successes.

Mr Frugtniet’s application for Repeat Registration dated 5 November 2013

Mr Frugtniet acknowledged that, in his Repeat Registration Application Form dated 5 November 2013, he had not revealed what he had been told by the Tax Practitioners Board (TPB). That was that, at its meeting held on 16 January 2013, it had resolved to terminate his registration as tax agent under s 40-5(1)(b) of the Tax Agent Services Act 2009 (TAS Act). It made that decision on the basis that Mr Frugtniet had ceased to meet the tax practitioner registration requirements that he be a fit and proper person or a person of integrity. The TPB gave Mr Frugtniet notice of its decision in a letter dated 19 February 2013 and advised him that the termination of his registration would take effect from 22 March 2013. It went on to give him reasons for its decision.[53]
[53] T documents; T17 at 233-236

In response to a request made by MARA under s 308 of the Migration Act dated 16 December 2013 (Section 308 Notice), Mr Frugtniet gave it a copy of the TPB’s reasons for decision on 9 January 2014. By then, Mr Frugtniet had lodged an application for review of the TPB’s decision.[54] A differently constituted Tribunal heard that application and affirmed the TPB’s decision.[55] Mr Frugtniet’s appeal against it was allowed by Jessup J, who remitted the matter to the Tribunal to be re-heard by a differently constituted Tribunal.[56] It is yet to be reheard.
[54] T documents; T17 at 237
[55] Re Frugtniet and Taxation Practitioners Board [2014] AATA 766; (2014) 148 ALD 401; Senior Member Fice
[56] Frugtniet v Tax Practitioners Board [2015] FCA 1066; (2015) 67 AAR 336

Mr Frugtniet agreed with Mr Rogers’ proposition that he had previously disclosed the TPB’s investigations to MARA. He had done so in 2011 when he attached a supplementary sheet of paper to his repeat application form. At the time, the TPB told him that it was not investigating him but he knew that it was, he said. MARA has told him that it did not receive the attached piece of paper. Mr Frugtniet said that he did not have a copy of the piece of paper. He had not kept a record of his application because he had done it online. As it was his understanding that he had attached the piece of paper and disclosed the investigation in 2011, Mr Frugtniet said that he did not disclose the TPB’s investigation in 2012 when he made a further repeat application.
Mr Frugtniet said in giving evidence that he had disclosed to MARA that the TPB was investigating him. He had advised them in 2011, he said. MARA had asked him for further information and he had provided that information. He told MARA that he could not meet one of the requirements in the TAS Act and was as helpful as he could be. In 2012, he did not tell MARA what was happening with the TPB because he was not concealing anything. He was aware that the TPB was in contact with MARA. Some common sense should be applied in these circumstances, Mr Frugtniet said. He was aware that he had not advised MARA of the TPB matter in 2012. The TPB made its decision in January 2012 and he made arrangements to tell his clients.

Putting these matters to one side, Mr Frugtniet said that there is an argument that the TPB was not investigating him. In this regard, he referred to the letter written to him by the TPB on 19 February 2013. That letter advised him of the TPB’s decision made on 16 January 2013 but it went on to advise him that it had not conducted an investigation under s 60-95(3) of the TAS Act. It referred to Subdivision 40-A of Division 40 of Part 4 of the TAS Act which permits the TPB to terminate a tax agent’s registration without investigating his or her conduct under s 60-95. A Note to s 60-125 confirms that this is so.

Mr Frugtniet also said that he thought that, having disclosed the investigation on an earlier occasion, he did not have to reveal it again. Mr Frugtniet said that he had provided it as an attachment to his application in 2011 but MARA did not receive it. He referred to MARA’s acknowledgement of the TPB decision that he provided to it in response to the Section 308 Notice. In that acknowledgement dated 14 January 2014, MARA began by saying:
“Thank you very much for your timely response to the section 308 notice, it is much appreciated.”[57]

Later, in an email dated 13 February 2014, MARA again thanked Mr Frugtniet when he gave it an update of the proceedings in the Tribunal regarding the review of the TPB’s decision.[58]

[57] Exhibit A; RF3 and [14]

[58] Exhibit A; RF5 and [17]

Mr Frugtniet’s attention was drawn to a Personalised Application Form for Repeat Registration he had signed on 2 November 2012. He objected to Mr Rogers’ producing the document at the hearing notwithstanding that he had referred to it at [14] of his Statement of Facts and Contentions. He submitted that it was an incomplete document submitted online. MARA should have produced it earlier so that he could find it. Despite that, he did identify his signature on it.

I admitted the document on the basis that it is relevant to Mr Frugtniet’s position that he had attached a document to it advising of the TPB’s investigation. In addition, he had referred to it in his Statement of Facts and Contentions when he said:
“… to the best of my knowledge in 2012 upon completing the repeat registration I referred to the fact by way of attachment that I was subject to an investigation in which disciplinary action was being taken by the Tax Agents Board …”.

As he had referred to it, he could not be disadvantaged by MARA’s producing the document he had submitted. Mr Frugtniet identified his signature at the hearing.

The application was in the form of a Declaration. Paragraph 2 read:
“I am a fit and proper person to give immigration assistance and I am a person of integrity as:
i.I have not had a finding of guilt against me for a criminal offence (past or present) in any country other than that previously declared by me to the Migration Agents Registration Authority; and
ii.I am not currently the subject of any criminal proceedings in any country (I understand that I must declare any current proceedings); and
iii.to the best of my knowledge and belief I have not been (other than previously declared by me to the Migration Agents Registration Authority) and am not currently the subject of an inquiry or investigation (I understand that I must declare any current investigations) by:
∙a department or agency of the Commonwealth; or
∙a department or agency of a State or Territory of Australia; or
·a professional association; or
·a corporate regulatory agency; or
·a consumer protection organisation; and
iv.no disciplinary action is being taken (I understand that I must declare any current actions), or has been taken against me (other than previously declared by me to the Migration Agents Registration Authority); and
v.I have not been declared bankrupt or applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, or compounded with my creditors, or made an assignment of remuneration for the benefit of my creditors (other than previously declared by me to the Migration Agents Registration Authority); and
vi.I have not been a director or executive officer of a corporation that became insolvent whilst I held one of these positions (other than previously declared by me to the Migration Agents Registration Authority).”[59]
[59] Exhibit 2

In cross-examination, Mr Frugtniet agreed that he had answered “No” to both Questions 29 and 30 on the Repeat Registration Application Form that he signed on 5 November 2013. He acknowledged that he had signed the Declaration in Part F of that form. I have set out both the questions and the relevant declarations at [37]-[39] above.

Mr Frugtniet’s attention was drawn to the passage from the judgment of Gillard J in which his Honour had addressed Mr Frugtniet’s claim that he had revealed relevant information to MARA regarding the perjury charges. I have set the passage out at [25] above. Mr Frugtniet denied that he had made the same mistake as he had in 2002 by not keeping a record of what he had sent to MARA in 2011. He said that the proceedings were not the same proceedings and, in any event, he could not comment on what Gillard J said. In these proceedings, it was not remarkable that he was not producing the attachment that he had sent because his computers had been seized. He had looked for the document and would try again. He did try again and came to the conclusion that the document was irretrievable.

Mr Frugtniet said that, apart from 2012, registrations were done manually. A pilot scheme was undertaken in 2012 when an automated scheme was introduced. He said that he had an article that said that there were problems with that automated system. A document issued by MARA set out the steps that had to be undertaken and was, Mr Frugtniet said, incomplete.[60] The way in which the steps had to be undertaken meant that an applicant had to check his or her personal and business details on the web site first and confirm that they were complete in every detail. He or she then had to claim at least ten CPD points by completing that field before moving to the third step requiring completion of the Average Fee Form. Step 4 was the payment of the Repeat Registration application fee before the personalised Repeat Registration Application Form could be downloaded, completed, relevant documents attached and, in Step 6, signed and submitted.
[60] Exhibit C

Mr Frugtniet said that the copy of the Personalised Application Form for Repeat Registration that he signed on 2 November 2012 had a signature because he had downloaded it but it had to be uploaded with supporting documents. Although the Certificate of Currency, his most recent bank statement and receipt for a subscription to Legend were uploaded, it was not possible to upload further documents. That was why one document was missing.

Mr Frugtniet did agree with Mr Rogers that his not disclosing things to the authorities had been a problem for him in the past. He had not disclosed matters when seeking to be admitted as a legal practitioner. The context, however, was very different. In those proceedings, he had failed to disclose everything, including spent convictions. These proceedings are very different. He accepted that the contents of the TPB letter of 2013 had to be disclosed when he made his repeat application later that year but that they were not. Mr Frugtniet said that he knew that there would always be a question at renewal time as to whether he had disclosed the TPB proceedings but he believed that he had disclosed the investigation. When asked how he could believe that when the matters before the TPB had moved from investigation to decision, Mr Frugtniet replied that the TPB’s decision had been earlier in the year in February 2013 and was already before the Tribunal.

Mr Frugtniet said that it would have been very foolish of him had he intended to hide it. He had not intentionally hidden the outcome of the TPB proceedings. As things went, he was aware that the TPB and MARA were in touch and he would be a fool not to disclose TPB’s decision when he knew that the two authorities had been collaborating. Mr Frugtniet denied that he had given knowingly false answers to Questions 29 and 30 in the Repeat Registration Application Form completed on 5 November 2013. The same was true of the Declaration he had given in that form. It was not knowingly false. As it was, he gave a copy of the TPB’s decision to MARA in December 2013. His not having done so was a matter of inadvertence and not of knowingly failing to give it a copy.

Mr Frugtniet said that, by making its decision a single day before the expiration of his registration as a migration agent on 16 November 2013, he was denied the opportunity to apply to the Tribunal for a stay of MARA’s decision.

ASIC ban on Mr Frugtniet’s engaging in credit activities

Mr Frugtniet said that ASIC had made its decision in private. Under the National Consumer Protection Act 2009 (NCP Act), the hearing is a private thing.
CONSIDERATION OF ISSUES

At what point in time are the issues decided?

In the context of the Migration Act, the time at which I must consider the factors in s 290 is determined by reference to the principles expressed by the High Court in Shi v Migration Agents’ Registration Authority[61] (Shi). The case before the High Court concerned a decision that MARA had made to cancel Mr Shi’s registration as a migration agent. A differently constituted Tribunal had decided to set aside MARA’s decision and substitute a decision cautioning the agent but, provided certain conditions were satisfied, setting that caution aside. The Tribunal had regard to matters occurring after the date of the cancellation. MARA argued that it was limited to those existing at the time of its decision but the High Court decided that the Tribunal was required to have regard to those facts and circumstances existing at the time it makes its decision.
[61] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147; Kirby, Hayne, Heydon and Crennan JJ; Kiefel J dissenting

In coming to those conclusions, the High Court established a number of principles for determining the time at which the Tribunal is required to have regard to the relevant facts and circumstances. As I understand those principles,[62] they are, in summary and unless varied by the particular legislation conferring jurisdiction on the Tribunal:
[62] My reasons for reaching the understanding that I have are set out in Re Lobo and Department of Immigration and Citizenship [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304 at [27]-[39]; 647-654; 313-320. I adopt those reasons as part of these reasons.
(1)The decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;
(2)The Tribunal will address the same issues or questions as those addressed by the original decision-maker;
(3)Unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision;
(4)The Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and
(5)The task of the Tribunal:
(a)is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and
(b)is not to decide whether the decision under review is itself the correct or preferable decision.

As the case before it was decided in the context of a cancellation decision under s 303 of the Migration Act and as that is the section under which MARA made its decision in this case, I do not need to consider the matter further. I am bound by the judgment of the majority of the High Court.

May regard be had to matters previously considered by MARA in relation to applications for repeat registration in earlier years?

As I understand Mr Frugtniet’s submission, he put forward the view that MARA could not rely on matters arising in earlier years when it had registered him in those years. It had considered those matters and had taken no further action. He referred in particular to a judgment of Pagone J in Frugtniet v Board of Examiners[63] in 2002 and another of Gillard J in Frugtniet v Board of Examiners[64] in 2005. Before 1 July 2009, the Migration Institute of Australia Limited (MIAL) acted as MARA. It had found him to be a fit and proper person and that no further action should be taken against him after those judgments had been delivered. The MIAL had accepted his responses, Mr Frugtniet said, and he did not understand the basis on which MARA could again refer to these matters. MARA’s power to rely on those convictions has been exhausted.
[63] [2002] VSC 140
[64] [2005] VSC 332

Unless suspended or cancelled, an individual’s initial registration as a migration agent lasts for 12 months after registration. Each year after that, a registered migration agent must make a registration application and pay any registration application fee that is payable. If that is done, MARA may make a decision on that application. That is an exercise of its power on that application. If MARA does not make a decision, the effect of s 300(4), when read with s 300(1), is to continue the migration agent’s registration for a further period of ten months. That continuation of registration is by virtue of those statutory provisions. Should MARA make a decision on the registration application in that ten month period, that is an exercise of its power under s 289 when read with ss 289 to 294. If, before the end of that ten month period, MARA has not decided the registration application, the application is taken to have been granted by virtue of s 300(5).

In considering what matters should be taken into account in considering what is meant by a “fit and proper person”, Mason CJ said:
“... the statutory concept of ‘fit and proper person to hold the licence’, which is undefined, takes account of qualities and characteristics of the licensee apart from matters mentioned in s. 88(2)(a), (b)(ii) and (c). Thus, the concept comprehends matters other than the financial, technical and management capabilities necessary to provide an adequate and comprehensive service, lack of which is a ground for suspension or revocation under s. 88(2)(b)(ii). Thirdly, though fitness and propriety are necessarily related to the holding of the licensee’s commercial licence and to the provision of a broadcasting service pursuant to that licence (see Re New Broadcasting Ltd (1987) 12 ALD 1 at 8-9), the concept should not be narrowly construed or confined. It must extend to any aspect of fitness and propriety that is relevant to the public interest, because the tribunal’s power to suspend or revoke commercial licences is only exercisable ‘if it appears to the tribunal that it is advisable in the public interest to do so, having regard only to the ... matters or circumstances’ set out in pars (a), (b) and (c) of s. 88(2).
Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interests of the public: Reg v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 53; 27 ALR 321. The provisions of the Act dealing with the grant, renewal, suspension and revocation of licences, the limitations on the ownership of shares, the determination of programme standards and the extensive role given to the Tribunal in connexion with these matters are all designed to secure the attainment of that purpose. Commercial broadcasting is a very important medium in the communication of information and ideas. Moreover, a commercial broadcasting licence is a valuable privilege which confers on the licensee the capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with a due regard to proper standards of conduct and a responsibility not to abuse the privilege which it enjoys. Possession of a licence or the exercise of the privilege which it confers has been described ‘as in the nature of a public trust for the benefit of all members of our society’: see the Australian Report of the Royal Commission on Television (1954), p. 144; Second Reading Speech on the Broadcasting and Television Bill 1956 (Cth) by the Honourable C W Davidson, Postmaster-General, House of Representatives Parliamentary Debates, 19 April 1956, p.1536.
A licensee which is a fit and proper person in the context of
[91] (1990) 170 CLR 321; 94 ALR 11; 21 ALD 1 at 348-349; 32; 18-19
s. 88(2)(b)(i) must have an appreciation of those responsibilities and must discharge them. Conversely, a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.”[91]

Both of these aspects were also considered at some length by Toohey and Gaudron JJ. In relation to what is a “fit and proper person”, they said:
“ The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”[92]
[92] (1990) 170 CLR 321; 94 ALR 11; 21 ALD 1 at 380; 56; 40

Toohey and Gaudron JJ then went on consider whether it was enough to look at the character or reputation of a licensee or whether an examination should be made of the conduct of its affairs and activities. They said that this depended on the legislation and set out s 88(2) which I have set out above, s 83(1) which provides that an applicant for a grant of a licence must give certain undertakings in relation to that licence and s 83(4) which requires that a fresh undertaking be given when the licence is renewed. After noting that similar provisions appear in ss 83A(4) and 86AA(4) in relation to the refusal to grant or the refusal to renew a commercial licence as to the suspension or revocation of a licence with which they were concerned, their Honours said:
“ It is clear from s. 88(2) and from ss. 83A(4) and 86AA(4), that the question whether a company is fit and proper to hold a commercial licence extends beyond that which is involved in the provision of broadcasting services and compliance with the conditions and the undertakings under s. 83(1) or s. 86(4) which attach to the licence. See Western Television Ltd v. Australian Broadcasting Tribunal (1986) 12 FCR 414 at 421; 69 ALR 465. Nevertheless, the question is directed to the fitness and propriety of the licensee to hold a commercial licence and to undertake broadcasting activities pursuant to that licence. See Re New Broadcasting Ltd. (1987) 12 ALD 1 at 8. Even so, the nature of commercial broadcasting and the grant of power in ss. 83A(4), 86AA(4) and 88(2) of the Broadcasting Act on the basis that ‘it appears ... that it is advisable in the public interest’ indicate that the considerations which may be taken into account in determining whether a licensee is not or is no longer fit and proper are not closely confined.
Commercial broadcasting plays a significant role in the dissemination of information and ideas. That dissemination is vital to the maintenance of a free and democratic society. See Attorney-General (N.S.W.) v. John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695, per McHugh J.A .at 714. See also Hinch v Attorney-General (Vict.) 164 CLR 15 at 83; 74 ALR 353; Victoria v. Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 98; 41 ALR 71; Attorney-General v. Times Newspapers Ltd. [1974] AC 273 at 315. A commercial broadcasting licence thus carries with it an obligation to the community. It also carries with it the potential for powerful influence. The community is entitled to confidently expect that a licensee will discharge its obligation and, in particular, that the potential for influence will not be abused. Within this context it is necessarily sufficient to ground a finding that a licensee is not a fit and proper person to hold a commercial licence that the community could not or would not have confidence that the licensee would discharge that obligation. Equally it is sufficient to ground a finding that the licensee is no longer fit and proper that the community could or would no longer have the confidence. Those questions are apt to be answered by reference to the character and reputation of the licensee.”[93]
[93] (1990) 170 CLR 321; 94 ALR 11; 21 ALD 1 at 381-382; 57-58; 41-42

Even though the High Court in Bond was concerned with a different statutory framework from that with which I am concerned, its general principles remain applicable across a broad range of occupations for which a person must be a fit and proper person in order to be registered. As Hale J said much earlier in the case of Maxwell v Dixon:[94]
“... Clearly different qualifications are needed by eg lawyers, transport operators, hotel keepers and land agents, but, as is shown by the cases cited in the
judgment referred to (Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (supra)), it is not necessary to confine oneself to the special provisions
[94] [1965] WAR 167 at 169
of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue.”

The Court of Appeal (NSW) took a similar approach in the case of New South Wales Bar Association v Murphy,[95] which post-dated Bond. It did so when considering whether an act of bankruptcy was committed in circumstances that show that the holder of a practising certificate under the Legal Profession Act 1987 was not a fit and proper person to hold a practising certificate. That issue arose under s 38FC(1)(b) of that legislation. Giles JA, with whom Spigelman CJ and Ipp AJA agreed, said:
“ The determination is of fitness to hold a practising certificate at the time of the determination – s 38FC(1)(b) refers to circumstances that show that the applicant or holder is not a fit and proper person to hold a practising certificate. McLellan J [at first instance] accepted as genuine the respondent’s acknowledgement that he was wrong to delay lodgement of his taxation returns and that he should have addressed his problems at an earlier time. If the respondent were to be judged unfit to hold a practising certificate, it would be because his failings so reflected upon his ability to act in the affairs of his clients that protection of the public warranted cancellation of his practising certificate.
I do not think that they do. In my judgment the circumstances as found do not reveal such deficiency in character or competence as a legal practitioner that the respondent is not fit to practise as a barrister. …”[96]
[95] [2002] NSWCA 138; (2002) 55 NSWLR 23; 50 ATR 267
[96] [2002] NSWCA 138; (2002) 55 NSWLR 23; 50 ATR 267 at [171]-[172]; 62-63; 301

It is apparent from this passage that past transgressions do not necessarily render a person unsuitable for evermore into the future. If transgressions are acknowledged and their causes addressed so that the chance of their repetition is minimised, they may be viewed in quite a different light. This is apparent from the following passage from the judgment of Hill J in Stasos v Tax Agents’ Board of New South Wales:[97]
“ However, a person who has been shown to be other than a fit and proper person to be registered must satisfy the Tribunal considering his reregistration or cancellation of his registration as the case may be, that he appreciates the significance of his wrongdoing, that he regrets it and that he has rehabilitated himself such that it is truly unlikely that there will be any lapse in the future of the standards which are required of him. The more serious is dereliction from duty the longer may be the time necessary to show this. It will not be sufficient from him to merely express his contrition. The Tribunal must be satisfied on the balance of probabilities that not only is that contrition actually felt, but that he will not again deviate from the high standards required of him as a registered tax agent.”[98]
[97] [1990] FCA 379; (1990) 21 ALD 437; 21 ATR 974; 90 ATC 4950
[98] [1990] FCA 379; (1990) 21 ALD 437; 21 ATR 974; 90 ATC 4950 at [87]; 445; 985; 4960

That brings me back to the role of a migration agent. It is a role carrying with it both responsibilities and privileges. The responsibilities extend beyond those relating directly to the migration agent and his or her clients but to the Australian community. Migration agents are but one of the elements in ensuring the proper administration of the Migration Act and Regulations but they are an important element. Not only do their clients rely upon them to have proper knowledge of the law so that they may pursue their rights under the migration law, review authorities, the courts and the Australian community rely on their having that knowledge and upon their acting with integrity in putting forward their clients’ claims. Among the privileges of a migration agent is the privilege that he or she may hold him or herself out to the general public as a person who is regarded as suitable to provide immigration assistance, as that term is defined in the Migration Act. Another is that he or she may charge for the services he or she gives to the general public in providing that assistance.

These privileges and obligations are reflected in specific provisions of the Migration Act and of the Code of Conduct. A migration agent must, for example, know the provisions of the Migration Act and Migration Regulations and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice. He or she must complete continuing professional development, act with diligence and fairness, maintain proper records, have adequate arrangements to avoid financial loss and so on.[99] Consistently with their role in the administration of the migration law, a migration agent must not encourage a client to lodge an application that is vexatious or grossly unfounded and must give written advice that it is, in his or her opinion, an application of that sort. If the client persists, the migration agent must obtain written acknowledgement from the client that the advice has been given.[100] A migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all of the facts against the relevant criteria.[101]
[99] Code of Conduct; Part 2 generally
[100] Code of Conduct; cl 2.17
[101] Code of Conduct; cl 2.19

Section 290(1)(b) of the Migration Act requires me to consider when a person is a “person of integrity” and when he or she is not. Mr Rogers referred me to the judgment of Wilcox J in Lilienthal v Migration Agents Registration Authority.[102] His Honour considered its meaning in the context of the migration agent registration provisions in the Migration Act. Mr Lilienthal had submitted that MARA was concerned only with the conduct that would constitute a criminal offence. While s 290(2)(c) and (d) require consideration of a conviction or criminal proceeding, they do not preclude MARA from considering evidence of the conduct of the migration agent even if it does not amount to a criminal conviction or a criminal proceeding. He explained:
“… I think Parliament has deliberately used language in par (h) sufficiently general to cover any other matter which can be regarded as relevant to integrity or fitness to give immigration assistance, whether or not that matter falls within, or overlaps, any of the preceding paragraphs.”[103]
[102] [2002] FCA 93; (2002) 117 FCR 558; 44 AAR 371
[103] [2002] FCA 93; (2002) 117 FCR 558; 44 AAR 371 at [20]; 561; 374

Wilcox J later considered Mr Lilienthal’s submission that the breadth of inquiry involved in determining whether a person is not a person of integrity would be never ending because nobody is perfect. He said:
“… Mr Lilienthal’s submission overlooks that the ambit of the Registration Authority’s inquiry is circumscribed by its statutory context. The Authority is not concerned with moral perfection in every aspect of life, but only those aspects of character and behaviour that go to fitness to give immigration assistance. …
Mr Lilienthal also submitted that the Tribunal misdirected itself about the standard of integrity required by registered migration agents. In its reasons for decision, the Tribunal quoted with approval a number of statements about the concept of integrity in the context of s 290. Particular reference was made to a statement contained in Peng and Department of Immigration and Multicultural Affairs and Administrative Appeals Tribunal [1998] AATA 12. The statement was there made that integrity means soundness of moral principle and character, uprightness, honesty. Mr Lilienthal does not challenge this definition of the term: his challenge really harks back to the width of par (h) of s 290(2).”[104]
[104] [2002] FCA 93; (2002) 117 FCR 558; 44 AAR 371 at [21]-[22]; 562; 375

Is Mr Frugtniet a fit and proper person and a person of integrity?

Mr Frugtniet said that both the Migration Act and the NCP Act are concerned with consumer protection. In matters in which he had been engaged with the TPB or its predecessor or ASIC, no consumer has ever suffered. Given that he had been a registered tax agent for 18 years, he would have thought that, had there been a problem, he would have received a complaint in that time. His actions have to be viewed against the effluxion of time. The absence of complaints has to “count volumes” for him when he has continued to practise as a migration agent despite being refused admission as a legal practitioner.

I agree with Mr Frugtniet that his conduct must be considered over time and against the background of all that he has done. I note that Mr Frugtniet has been banned by ASIC from engaging in credit activities after it had found that he had provided misleading information and had not made full disclosure on a credit licence application. He has been disqualified by the TPB from being a tax agent. Both decisions are still subject to appeal, in the case of the ASIC ban, and review, in the case of the cancellation as a tax agent. As they are yet to be resolved, I have given no regard in any sense. That means that I have not looked to the basis on which the decisions were made at all.

At the foundation of the Supreme Court’s judgments were Mr Frugtniet’s failure to reveal the three charges of perjury that had been laid against him, the six counts of theft and three counts of attempted theft that had been laid against him when he was an employee of the ANZ Bank as well as convictions in the United Kingdom. As Pagone J said in his judgment, the fact of the charges and of the convictions was not a necessary bar to admission to practice. What became a bar for him was that he had not revealed them. As Pagone J said:
“… A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all of those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self evident and essential.”[105]
[105] [2002] VSC 140 at [10]

The responsibilities of a registered migration agent are, to a large extent, codified in the Code of Conduct and in the Regulations but, for all that, they are little different from those described by Pagone J as those of a legal practitioner. A registered migration agent has a duty under the Migration Act and Regulations, and so to bodies such as the Minister, Department and this Tribunal, not to make statements he or she knows, or believes to be false.[106] In relation to MARA, that is now specifically provided for in cl 2.9A. While the focus of a registered migration agent will be much narrower than that of a legal practitioner, the same commitment to honesty is required as is candour and frankness irrespective of self-interest and embarrassment.
[106] Code of Conduct; cl 2.9

The findings that I have made in relation to his application for repeat registration lodged on 6 November 2013 and the findings I have made in relation to his part in the presentation of false documents to the TRA reveal that Mr Frugtniet has not learned the hard lessons given by the Supreme Court in refusing to admit him as a legal practitioner or by VCAT in not permitting him to be a lay associate of a law practice. He has, I have found, failed to reveal to MARA the inquiry by the TPB and the cancellation of his registration as a tax agent. He has, I have found, knowingly permitted his mobile telephone number to be used as part of ruse to give Mr Bastola a false reference. He has done that knowing that Mr Bastola required a TRA assessment if he were to satisfy the criteria for a Class 880 Visa. This is not behaviour that displays the qualities required of a person who can be relied on to act in accordance with the standards of honesty, openness and candour that the community must be able to expect of a person who is given the responsibility of providing immigration assistance and the privilege of being able to charge for it.

WHAT SANCTION SHOULD BE IMPOSED?

It seems to me that the only sanction that I should impose is that of cancellation. Mr Frugtniet was, as he has displayed to the Supreme Court and VCAT, always ready with a technical explanation as to why he had done no wrong. I have found his explanations to be misguided. What Mr Frugtniet does not display is any contrition or remorse. There might be any number of reasons for that but, having regard to his history, I see him as always finding a way to blame someone or something else for his predicament. He does not engage in self-examination in an attempt to come to an understanding of why he finds himself being charged with perjury or theft. Even though he is not convicted of them, he continues to put himself in positions where his honesty and integrity are questioned. His explanation that he was only helping a friend is not a satisfactory explanation for his misrepresenting himself as a legal practitioner either for VCAT or for me. In the most recent instances with MARA, it is his own acts and omissions that have led to MARA’s cancelling his registration as a migration agent. I have come to the same view. I am not satisfied that Mr Frugtniet can be trusted to act with the integrity, honesty and candour required of a registered migration agent. Therefore, I affirm the decision of MARA dated 6 November 2014.

I certify that the one hundred and thirty-eight preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie,

Signed: ……….................[sgd]......................................

Associate
Dates of Hearing           18 and 19 January 2016
Date of Decision  11 May 2016
For the Applicant           Self-represented
Solicitor for the Respondent  Mr N Rogers, Australian Government Solicitor

“o	*Q29*	If Yes; attach the following information: [41] T documents; T19 at 318 description of the matter investigated, dates, name of the department or agency, results of investigation, letter or other written evidence.
o	*Q30*	If Yes; attach the following information: description of the disciplinary action, dates, name of the body undertaking the action, results of action, letter or other written evidence.”[41]