Australian Immigration Daily News

Imagine that you were asked to comment on the chances that a Registered Migration Agent could avoid disciplinary action  - in the form of cancellation of his registration  - in the following scenario:

The RMA has the following “track record”:

• Found by the AAT to have been a “key player” in an attempt to mislead the Trades Recognition Authority by providing a false work reference for a visa applicant;
• Disqualified from acting as a “law associate” of a legal practitioner or law practice by the Victorian Civil and Administrative Tribunal by lying to a magistrate and a barrister by holding himself out to be a legal practitioner when in fact his application for admission as a legal practitioner had been rejected on the basis that he had failed to disclose that he had been charged for perjury and theft and had been convicted in the UK on counts of handling stolen goods, forgery and obtaining property by deception;
• Had his registration as a tax agent terminated by the Tax Practitioners Board on the basis that he had ceased to meet the requirement of being a “fit and proper person”;
• Has been permanently banned by ASIC from engaging in work as a finance broker after it was found that he had provided misleading information and had not made full disclosure on a credit licence application;
• Had submitted an application to the MARA for renewal of his registration as a migration agent which was false or misleading in a material particular because he had failed to disclose in his application for repeat registration that the Tax Practitioners Board had made a decision to terminate his registration as a tax agent; and
• Was found by the MARA to have engaged in a pattern of dishonest conduct in his dealings with the MARA, the ASIC and the Tax Practitioners Board by representing himself to be a legal practitioner when he had not been admitted to practice as a lawyer.

Against such a background, would you “reckon” that this person’s “goose was cooked”?

That after the MARA proceeded to cancel his registration as a migration agent, and after the Administrative Appeals Tribunal had affirmed the cancellation, that this person would not have had the proverbial “snowball’s chance in Hell” of succeeding in Federal Court with a judicial review application, and in getting the case sent back to the Tribunal for re-determination?

Well, if you thought after reading the laundry list of this person’s history that the judicial review application was inevitably doomed to go down in flames, guess again!

That’s right, the judicial review application to the Federal Court did succeed. The Federal Court’s decision in the case was handed down earlier this month, on 8 June 2017:  Frugtniet v Migration Agents Registration Authority (2017) FCA 537.

You may wonder, by what “Houdini”-like escape exercise did this person manage to succeed in the Federal Court?

One might venture to say: “On a legal technicality”!!!!

Here’s the story:

When the case came before the AAT, the Tribunal made a “standard direction” that the migration agent provide the Tribunal and the MARA with witness statements from any witnesses proposed to be called at the hearing, along with all reports, records and other documents on which he intended to rely at the hearing.

The RMA opposed this direction on the basis that it would infringe on his “privilege against exposure to penalties”.

What in the world is the “privilege against exposure to penalties”? 

It is a common-law right, related to the privilege against self- incrimination.

And this privilege against exposure to penalties would enable an RMA facing disciplinary proceedings before the Tribunal to “remain silent” throughout the proceedings before the Tribunal at least until the completion of the MARA’s case, and thus not to be required to foreshadow any evidence to be relied upon or to admit or deny any facts.

In the Frugtniet  case, Judge Kenny of the Federal Court held that the privilege against exposure to penalties does apply in a “non-judicial context”, such as in proceedings before the AAT involving potential sanctions such as cancellation of a migration agent’s registration.

Accordingly, Judge Kenny ruled that the Tribunal should not have made the directions requiring the migration agent to provide witness statements from intended witnesses, or a statement of facts, issues and contentions making “positive assertions” of fact in advance of the hearing. At most, he should only have been required to provide a statement identifying in general terms what the issue was on review.

And further, the Court ruled that the agent should not have been required, in accordance with the Tribunal’s “usual procedures” to present his case first, but rather should have been allowed to hear the MARA’s case to its completion before he was required to decide whether to give evidence and “make positive assertions about his case”.

So, whatever one may think about the apparent merits of this particular case, the decision of the Federal Court does provide some very valuable lessons about the procedures that can be demanded in the Tribunal to assure that the rights of an RMA who is facing disciplinary proceedings are properly protected.

Life is full of surprises, isn’t it!

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