Frugtniet v Migration Agents Registration Authority

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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…

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Details
Case
[2016] AATA 299
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Mr Frugtniet seeking review of a decision by the Migration Agents Registration Authority (MARA) to cancel his registration as a migration agent. The core of the dispute revolved around allegations that Mr Frugtniet had provided false or misleading information in a material particular, lacked integrity, was not a fit and proper person to provide immigration assistance, and had failed to comply with the Migration Agents Code of Conduct.

The Tribunal was required to determine whether Mr Frugtniet had knowingly submitted a false or misleading application for registration. It also had to assess whether he possessed the requisite integrity and was a fit and proper person to hold registration, and whether his conduct breached the Migration Agents Code of Conduct. These determinations were to be made in light of the evidence presented, including statements from individuals whose purported documentation was submitted by Mr Frugtniet.

The Tribunal's reasoning focused on the evidence concerning documents submitted by Mr Frugtniet in support of an application to Trades Recognition Australia. Specifically, the Tribunal considered a letter purportedly from a Mr Glenn William Evans, a chef and director of Café Miro. Mr Evans provided a statement asserting that the letter, including its signature, content regarding employment and training, and associated payslips and payment summaries, was fabricated. He stated that the business had been sold prior to the date of the letter and that the documentation methods described were not those used by his business. The Tribunal also referenced the relevant provisions of the Migration Act 1958 (Cth), particularly section 276, which defines what constitutes "immigration assistance," and noted exclusions for certain types of clerical or informational support.

The Tribunal affirmed the decision of the Migration Agents Registration Authority to cancel Mr Frugtniet's registration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 FriedmanTHE 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 AustraliaA. 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

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Subject to certain qualifications that do not apply in this case, a person who is not a registered migration agent must not give immigration assistance.[1] He or she must not ask for, or receive, any fee or reward for giving immigration assistance[2] or immigration representations.[3] A person gives “immigration assistance” in the circumstances set out in s 276. I will begin with ss 276(1), (2) and (3):[1] Migration Act; s 280(1)[2] Migration Act; s 281[3] Migration Act; s 282“(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:(a)preparing, or helping to prepare, the visa application or cancellation review application; or(b)advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or(c)preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or(d)representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application to the visa application or cancellation review application.(2)For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:(a)preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or(b)advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or(c)representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.(2A)For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:(a)preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or(aa)preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or(b)advising the other person about making a request referred to in paragraph (a) or (aa).”Section 276(3) excludes from the scope of ss 276(1), (2) and (2A) assistance such as clerical work, translation or interpretation services or advice that a person must apply for a visa or in the form of information produced by a third party and passed on without comment or explanation.