Frugtniet v Migration Agents Registration Authority

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FEDERAL COURT OF AUSTRALIA

Frugtniet v Migration Agents Registration Authority [2017] FCA 537

Appeal from: Rudy Frugtniet and Migration Agents Registration Authority [2016] AATA 299
File number: VID 609 of 2016
Judge: KENNY J
Date of judgment: 8 June 2017
Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal (Tribunal) to affirm the decision of the Migration Agents Registration Authority (MARA) to cancel the applicant’s registration as a migration agent – whether Tribunal erred in having regard to matters previously considered by MARA – whether Tribunal took into account irrelevant considerations – whether Tribunal erred in rejecting the application of the privilege against exposure to penalty in proceedings in the Tribunal – meaning of “immigration assistance”– meaning of “deceive” in cl 2.9A of Sch 2 of the Migration Agents Regulations 1998 (Cth) – no estoppel – s 91 of the Evidence Act 1995 (Cth) inapplicable
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Evidence Act 1995 (Cth)

Migration Act 1958 (Cth)

Migration Agents Regulations 1998 (Cth)

Migration Legislation Amendment Regulations 2011 (No 2) (Cth)

Migration Regulations 1994 (Cth)

Migration Legislation Amendment Regulations 2011 (No 2) (Cth) Explanatory Statement

Cases cited:

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Alishah v Gunns Ltd [2010] TASFC 6; 20 Tas R 305

Anderson v Australian Securities and Investments Commission [2012] QCA 301; 297 ALR 546

Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682

Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132; 130 FCR 37

Australian Securities and Investments Commission v Donald [2003] FCAFC 318; 136 FCR 7

Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; 164 FCR 32 Hadgkiss v Construction, Forestry, Mining and Energy Union [2005] FCA 1453; 146 IR 106

Australian Securities and Investments Commission v Whitebox Trading Pty Ltd (No 3) [2017] FCA 429

Batra v Minister for Immigration and Citizenship [2013] FCA; 212 FCR 84

Brackenreg v Comcare [2010] FCA 724; 187 FCR 209

Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; 114 FCR 456

BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246

Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408

CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390

Carmody v MacKellar (1997) 76 FCR 115

Chen v Chan [2008] VSCA 280

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd  [2015] HCA 21; 256 CLR 375

CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 1141

CSL v MUA [2016] FCA 1141

Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272

Danagher v Child Support Registrar [2014] FCA 1408; 228 FCR 213

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213…

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Details
Case
[2017] FCA 537
Decision Date

CaseChat Overview and Summary

The case of Frugtniet v Migration Agents Registration Authority involves an appeal by Mr Frugtniet against the decision of the Administrative Appeals Tribunal (Tribunal) to affirm the decision of the Migration Agents Registration Authority (MARA) to cancel his registration as a migration agent. The dispute centres on whether the Tribunal erred in considering matters previously assessed by MARA, whether it took into account irrelevant considerations, and whether it improperly rejected the application of the privilege against self-incrimination in the Tribunal proceedings. Furthermore, the case examines the definitions of "immigration assistance" and "deceive" as outlined in clause 2.9A of Schedule 2 of the Migration Agents Regulations 1998 (Cth).

The court had to decide several key legal issues. Firstly, whether the Tribunal was correct in considering matters already evaluated by MARA, and whether it was appropriate for the Tribunal to rely on findings made by other tribunals and courts. Secondly, whether the Tribunal erred in rejecting the application of the privilege against self-incrimination in the Tribunal proceedings. Thirdly, the meanings of "immigration assistance" and "deceive" under clause 2.9A of the Regulations needed to be interpreted. Lastly, the applicability of estoppel and s 91 of the Evidence Act 1995 (Cth) to the proceedings in the Tribunal were examined.

The court ruled that the Tribunal did not err in considering matters previously evaluated by MARA, as the Tribunal is not bound by the rules of evidence and can inform itself on any matter as it sees fit. The court found that the Tribunal's reference to findings by other tribunals and courts did not contravene the Evidence Act, which applies only to federal courts, not the Tribunal. Regarding the privilege against self-incrimination, the court held that it was not applicable in the Tribunal proceedings. The definitions of "immigration assistance" and "deceive" were interpreted in light of the objects and purposes of the Migration Act 1958 (Cth), with the court finding that the Tribunal's interpretations were reasonable. Finally, the court determined that estoppel did not apply, and s 91 of the Evidence Act was inapplicable to the Tribunal proceedings.

The final orders of the court were to set aside the decision of the Administrative Appeals Tribunal made on 11 May 2016, to remit the matter to the Tribunal, differently constituted, to be heard and determined according to law, and to order the respondent to pay the applicant's costs of the application.

Orders

Orders of the court

1. The decision made by the Administrative Appeals Tribunal on 11 May 2016 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law.

3. The respondent pay the applicant’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Clause 2.9A was first included in the Code of Conduct in 2006 in the following terms:In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not seek to mislead or deceive the Authority, whether directly or by withholding relevant information.Clause 2.9A was amended in the 2012 Code to provide that:In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.Clause 2.9A remained in this form at the time of the Tribunal’s decision on 11 May 2016.FACTUAL BACKGROUND The following facts are derived from the Tribunal’s statement of reasons. Applications for admission to practice Mr Frugtniet completed his legal training and applied for admission as a legal practitioner in 2001. His application for admission was rejected on the basis that he had not shown himself to be a fit and proper person to be admitted as required by the Legal Practice (Admission) Rules 1999 (Vic). He appealed to the Supreme Court of Victoria. On 1 May 2002 the Supreme Court dismissed the appeal. The Court held that Mr Frugtniet had not discharged his burden of showing that he was a fit and proper person for admission to practice as a legal practitioner since he had not disclosed a number of prior charges and convictions, including charges for perjury and theft and conviction in the United Kingdom on several counts of handling stolen goods, forgery and obtaining property by deception. Mr Frugtniet made a further application to be admitted to practice in 2004. Once again, his application was refused and he appealed to the Supreme Court of Victoria. The Supreme Court concluded, in 2005, that Mr Frugtniet was not a fit and proper person for admission to legal practice. The Court took into account his past conduct, his looseness with the truth, his attempts to mislead the Court and his refusal to accept wrongdoing.Dealings with the MARA, 2005-2006 On 19 December 2005, the MARA sent Mr Frugtniet, then a registered migration agent, a notice stating, amongst other things, that it was considering sanctioning him because in 2001 he was not a person of integrity or otherwise a fit and proper person to give immigration assistance. Mr Frugtniet responded on 31 January 2006. In a letter dated 26 July 2006, the 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. False documents supplied to TRA, 2007

Evidence

Evidence Before The Court

After judgment was reserved, Mr Frugtniet sought and was granted leave to file a short submission on the Evidence Act 1995 (Cth) (Evidence Act). The MARA filed a short submission in response. In his submissions Mr Frugtniet drew attention to s 91 of the Evidence Act, which provides that:(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. The Dictionary to the Evidence Act provides that an “Australian or overseas proceeding” is “a proceeding (however described) in an Australian court or a foreign court”. The Dictionary further provides that an “Australian court” means the High Court; a court exercising federal jurisdiction; a court of a State or Territory; a judge, justice or arbitrator under an Australian law; a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence. Mr Frugtniet’s submissions drew attention to “[t]he matters previously disclosed in relation to the applications for admission to the Board of Examiners/Court of Appeal in 2002 and 2005, the VCAT matter before the Court of Appeal, and the show cause notices and findings by the Migration Agents Registration Body who was a body authorised by law to hear, examine and receive evidence”. This appeared to be a contention that the Tribunal’s reference to, or reliance on, findings previously made by the MARA, the Supreme Court of Victoria (including the Court of Appeal) as well as VCAT was contrary to s 91 of the Evidence Act. The MARA, in response, submitted that the Tribunal was not bound by the rules of evidence and could inform itself on any matter in such manner as it considered appropriate, including by reference to the findings of another tribunal or court, citing s 33(1)(c) of the AAT Act, Casey v Repatriation Commission (1995) 60 FCR 510 at 514 and Re Thorpe and Commissioner of Taxation [2011] AATA 638; 123 ALD 355 at [72]. Mr Frugtniet’s submission must be rejected, primarily because the Evidence Act does not apply to proceedings in the Tribunal. Section 4(1) of the Evidence Act provides that the Evidence Act applies to all proceedings in a federal court. The Dictionary to the Evidence Act provides that “federal court” means (a) the High Court; or (b) any other court created by the Parliament (other than the Supreme Court of a Territory);and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence. The Tribunal does not fall within this definition since it is not required to apply the laws of evidence. Section 33(1)(c) of the AAT Act expressly provides that “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. Section 91 of the Evidence Act does not therefore apply to the Tribunal: see also Danagher v Child Support Registrar [2014] FCA 1408; 228 FCR 213 at [37]-[38] (Gilmour J); Ralph v Repatriation Commission [2015] FCA 165; 145 ALD 357 at [64] (Murphy J); and Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555 at [91] (Flick and Perry JJ).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Two further provisions are also relevant. The first is the definition of the expression “immigration assistance”, as used in ss 303(1)(f) and 280. This expression is relevantly defined in s 276, as follows:(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 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).(3)Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:(a)does clerical work to prepare (or help prepare) an application or other document; or(b)provides translation or interpretation services to help prepare an application or other document; or(c)advises another person that the other person must apply for a visa; or(d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.(4)A person also does not give immigration assistance in the circumstances prescribed by the regulations.