FEDERAL COURT OF AUSTRALIA

Frugtniet v Migration Agents Registration Authority [2017] FCA 537

ORDERS

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal by Mr Rudy Frugtniet under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision made on 11 May 2016 by the Administrative Appeals Tribunal (Tribunal). In that decision, the Tribunal affirmed the decision of the Migration Agents Registration Authority (MARA) made on 6 November 2014 to cancel Mr Frugtniet’s registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth) (Migration Act). The decision of the Tribunal has the citation Rudy Frugtniet and Migration Agents Registration Authority [2016] AATA 299.

2    An appeal under s 44 of the AAT Act is commenced in the original jurisdiction of this Court and is limited to questions of law. Amongst other things, Mr Frugtniet seeks orders setting aside the decision of the Tribunal and remitting the matter to a differently constituted Tribunal to be re-determined.

3    Mr Frugtniet was first registered as a migration agent on 28 October 1996. He applied for repeat registration each year. He made his last application on 6 November 2013 and his registration was taken to continue under s 300 of the Migration Act.

4    On 6 November 2014, however, a delegate of the MARA decided to cancel Mr Frugtniet’s registration under s 303(1)(a) of the Migration Act. The delegate did so upon the basis that Mr Frugtniet knew that his application for registration was false or misleading in a material particular; that he was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance; and that he had not complied with clauses in the 2006 and 2012 Code of Conduct. The consequence of this decision was that Mr Frugtniet was disqualified from being registered as a migration agent for five years from the date of the cancellation: see s 292 of the Migration Act.

5    Mr Frugtniet applied to the Tribunal for review of that decision and now contests the Tribunal’s decision to affirm the decision to cancel his registration. In order to understand the questions of law that Mr Frugtniet seeks to raise in his appeal under s 44 of the AAT Act, it is necessary to refer to the relevant provisions of the Migration Act.

LEGISLATION

6    The registration of migration agents is governed by the Migration Act.

7    Division 3 of Pt 3 of the Migration Act provides for the registration of individuals as migration agents: see s 286. The MARA must keep the Register of Migration Agents, “listing individuals who are registered as migration agents”: s 287(1).

8    Pursuant to s 288 of the Migration Act, an individual may apply to the MARA to be registered as a migration agent. The MARA must register an applicant by entering her or his name in the Register, unless Pt 3 prohibits registration: s 289. Under s 299, the registration of a registered migration agent lasts for 12 months after the registration (unless automatically continued or discontinued, cancelled or suspended). Generally speaking, therefore, the agent is required to re-apply for registration every 12 months in order to remain registered.

9    Subject to presently immaterial exceptions, a person who is not a registered migration agent must not give immigration assistance, as defined in s 276 set out below: see s 280. A person who is not a registered migration agent must not ask for, or receive, any fee or other reward for giving immigration assistance (s 281) or for making immigration representations (s 282). A person makes immigration representations, as defined in s 282(4), if she or he 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.

10    The MARA may discipline registered migration agents if satisfied that a circumstance set out in s 303 of the Migration Act has arisen. Section 303(1) provides that the MARA 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.

…

11    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.

12    The second provision, which is also relevant to the application of s 303, is s 314 of the Migration Act. Section 314 provides that the regulations may prescribe a Code of Conduct for migration agents and that a “registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct”. The Code of Conduct is set out in Sch 2 to the Migration Agents Regulations 1998 (Cth).

13    Under the heading “Standards of professional conduct”, Pt 2 of the Code of Conduct as amended with effect from 1 January 2012 (2012 Code) states, in cl 2.1, that a registered migration agent must always:

    act in accordance with the law and the legitimate interest of his or her client; and

    deal with his or her client competently, diligently and fairly.

14    Clauses 2.9 and 2.9A of the 2012 Code state that a registered migration agent:

    must not make statements in support of an application under the Migration Act or the Migration Regulations 1994 (Cth) (Migration Regulations), or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate (cl 2.9); and

    must not mislead or deceive the MARA, whether directly or by withholding relevant information, in communicating with, or otherwise providing information to, the MARA (cl 2.9A).

15    As the Tribunal noted, the Code of Conduct has been amended on a number of occasions since it first came into force. Clauses 2.1 and 2.9 of the 2012 Code were relevantly the same in previous versions of the Code of Conduct.

16    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

17    The following facts are derived from the Tribunal’s statement of reasons.

Applications for admission to practice

18    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.

19    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.

20    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

21    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.

22    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

23    In August 2007, Mr Frugtniet, acting as a registered migration agent, lodged a skilled visa application on behalf of a client, Mr Ritesh Bastola. A criterion for the grant of the visa was that Mr Bastola’s skills had been assessed by Trades Recognition Australia (TRA). An application for a pre-migration skills assessment had in fact been submitted to TRA. This application identified Mr Frugtniet as Mr Bastola’s agent or representative and stated that Mr Bastola was employed at a café called “Café Miro”. A work reference attached to the skills assessment application attested to Mr Bastola’s work experience at the café which was purportedly signed by “Mr Glen Evans”, as director and executive chef of the café.

24    In August 2011, Mr Bastola sent a letter of complaint to the MARA claiming he had not completed the TRA application and had never seen the documents supplied with it. Mr Evans also prepared a statement in which he said that he had not prepared the work reference and did not know Mr Bastola. The work reference listed Mr Frugtniet’s mobile phone number as the contact number for Mr Evans. It also gave a GPO Box number, phone and facsimile numbers for Café Miro that were in fact numbers associated with a company of which Mr Frugtniet was a director at that time or associated with Mr Frugtniet himself.

25    I note that Mr Bastola subsequently pleaded guilty to one count of acting with the intention of dishonestly influencing a public official under s 135.1(7) of the Criminal Code Act 1995 (Cth) in relation to the false information provided in his skills assessment application to the TRA. He was discharged without conviction under s 19B(1)(d) of the Crimes Act 1914 (Cth).

26    On the basis of the evidence and other material before it, the Tribunal found (at [104]) that Mr Evans did not write the reference letter and “had never employed Mr Bastola in any capacity”. The Tribunal added that “[t]he information provided to the TRA regarding Mr Bastola’s employment history was false as were the attached payment slips and summaries”. The Tribunal held (at [107]-[108]) that it was:

... satisfied ... on the balance of probabilities, that Mr Frugtniet was a key player in [the] creation [of the false documents] even if he did not actually draft them and that he was a key player in an attempt to mislead the TRA by means of a false reference in the name of Mr Glen Evans. I make that finding in light of the evidence to which I have also referred but also in light of the fact that it was his mobile number that was given as the number for TRA to telephone Mr Glen Evans. The times at which Mr Glen Evans said that he was available gave only a very narrow window within which the TRA could contact him. That window occurred between 9:30 am to 11:00 am on any day from Tuesday to Friday. The person who drafted the documents had to be confident that, in that window of time, the person who answered the mobile number would answer as Mr Glen Evans of Café Miro. If Mr Frugtniet had not been involved in the drafting of the documents at some level or another, one call to his number by officers of the TRA would have revealed to it that his mobile number had been misappropriated by another. That would have followed from Mr Frugtniet’s advising them that they had called the wrong number and that he was not Mr Glen Evans to whom they wished to speak. The drafter of the documents could not take the risk that this would be the response and had to be sure that, when the TRA called Mr Glen Evans on the mobile number, the person answering the call would respond as Mr Glen Evans. Mr Frugtniet has not given evidence that he had mislaid his mobile before 9 August when the letter was written by Mr Glen Evans.

As Mr Frugtniet points out, the Statement of Services & Fee Agreement was signed seven days after the TRA’s acknowledgement of Mr Bastola’s application to it. That does not mean that the application to the TRA played no part in the professional services that Mr Frugtniet subsequently provided to Mr Bastola. Those services, as described in the Statement of Services & Fee Agreement, were that Mr Frugtniet would prepare and lodge a Migration Application for 880 Permanent Residence (class of visa). An integral part of that application was Mr Bastola’s application for an assessment of his skills for the nominated skilled occupation by the relevant assessing authority. His application for a Class 880 visa depended on an application’s having been made to an assessing authority at the time the application for a visa was made. The success of that application depended on Mr Bastola’s skills for a skilled occupation having been assessed by a relevant assessing authority and that authority’s having certified that those skills are suitable for the occupation.

(Citation omitted.)

Lying to a Magistrate and counsel, 2010

27    On 8 April 2011, the Victorian Civil and Administrative Tribunal (VCAT) made an order that Mr Frugtniet was a disqualified person for a period of three years for the purposes of Div 3 of Pt 2.2 of the Legal Profession Act 2004 (Vic). VCAT found that, on 25 May 2010, Mr Frugtniet had lied to counsel and to a Magistrate by holding himself out to be a legal practitioner at the Magistrates’ Court in Werribee that day. In broad terms, the effect of VCAT’s order was the he could not act as a “lay associate” of a local legal practitioner or law practice.

28    The Tribunal noted (at [36]) that:

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 [Legal Profession Act 2004 (Vic)]. 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.

(Citations omitted.)

Tax Practitioners Board, 2012

29    It appears that Mr Frugtniet had been registered as a tax agent under the Tax Agent Services Act 2009 (Cth) for several years when he was sent a “please explain” letter in July 2012 by the Tax Practitioners Board (TPB) concerning his continued registration as a tax agent. On 20 November 2012, the TPB notified Mr Frugtniet that it had decided to refer its concerns about his fitness and propriety and continued registration as a tax agent to the TPB’s Conduct Committee (Conduct Committee). In its subsequent letter of 19 February 2013, the TPB notified Mr Frugtniet that at its meeting on 16 January 2013 the Conduct Committee had resolved to terminate his registration as a tax agent under the Tax Agent Services Act 2009 (Cth) on the basis he had ceased to meet the requirement that he was a fit and proper person. Mr Frugtniet was advised that the termination of his registration took effect from 22 March 2013 and that the Conduct Committee had also decided that he was unable to apply for registration for a period of five years from that date.

The ASIC’s ban, 2014

30    On 10 July 2014, the Australian Securities and Investments Commission (ASIC) permanently banned Mr Frugtniet, who had acted as a finance broker, 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 of a company of which he was a former director. The ASIC found that Mr Frugtniet was not a fit and proper person to engage in credit activities.

31    Mr Frugtniet’s subsequent application for review by the Tribunal, differently constituted, was unsuccessful. The Tribunal affirmed the ASIC’s decision on 6 March 2015; and Mr Frugtniet appealed to this Court, which, at the time of the Tribunal’s decision in the present matter, had not delivered judgment.

Mr Frugtniet’s last application to the MARA

32    As noted above, Mr Frugtniet applied to the MARA on 6 November 2013 for repeat registration as a migration agent for the ensuing twelve months. In this application Mr Frugtniet crossed the box marked “No” in answer to questions 29 and 30:

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?

30    To 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?

*This includes the Office of the Migration Agents Registration Authority and the former MARA.

33    If he had answered “yes” to these questions, 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:

34    Mr Frugtniet also signed a declaration, which included the following statements:

14.    I declare that I am not aware of any finding, conduct or event which would effect my fitness to provide immigration assistance or which goes to my integrity (other than that which is disclosed herewith or previously disclosed); and

15.    I agree that if any of my circumstances change, such that an answer in this application or information given to the Authority is no longer correct, I will inform the Authority as soon as possible but no more than 14 days later. I will continue to advise the Authority of any changes in my circumstances until a decision is made on my application. 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 Act 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 for up to 12 months. …

35    On 16 December 2013, the MARA sent Mr Frugtniet a notice under s 308 of the Migration Act informing him that it had come to its attention that on 16 January 2013 the TPB had decided to terminate his registration as a tax practitioner and prohibited him from applying for re-registration for a period of five years, effective from 22 March 2013. The notice requested that Mr Frugtniet provide the MARA with a copy of the reasons for the decision that the TPB provided to him. Mr Frugtniet responded to the notice and provided a copy of the TPB’s reasons for decision on 10 January 2014.

36    By this point, Mr Frugtniet had lodged an application for review of the TPB’s decision. A differently constituted Tribunal affirmed the TPB’s decision. An appeal under s 44 of the AAT Act was allowed and the matter remitted to the Tribunal for rehearing. The outcome of the hearing was not known at the time the Tribunal affirmed the MARA’s decision of 6 November 2014.

37    On 5 September 2014, the MARA issued a notice to Mr Frugtniet under s 309(2) of the Migration Act. The notice informed Mr Frugtniet that the MARA was considering making a disciplinary decision, including to cancel his registration as a migration agent, and informed him of the information before it, referring to his involvement in the submission of a false work reference and work history details to TRA in relation to Mr Bastola’s skills assessment application; his failure in his November 2013 application for repeat registration to inform the MARA of the TPB’s inquiry or investigation or its decision to terminate his registration as a tax agent; that the ASIC had banned him from engaging in credit activities; and the VCAT’s finding in relation to his conduct in holding himself out to be a legal practitioner.

38    Mr Frugtniet subsequently provided submissions in response to the s 309(2) notice.

39    On 6 November 2014 the MARA decided to exercise its power under s 303(1)(a) of the Migration Act to cancel Mr Frugtniet’s registration as a migration agent. The MARA considered the matters set out in the s 309(2) notice, and the submissions made by Mr Frugtniet in response. The MARA was satisfied that: (1) Mr Frugtniet had knowingly submitted false work history details and a false work reference to TRA in support of Mr Bastola’s skills assessment application; (2) Mr Frugtniet had misled or deceived the MARA by failing to disclose in his 2013 application for repeat registration that the TPB had made a decision to terminate his registration as a tax agent; and (3) he had engaged in a clear pattern of dishonest conduct in his dealings with the MARA, ASIC and the TPB, and by dishonestly representing himself as a legal practitioner when he was not admitted. In those circumstances, the MARA concluded that, for the purposes of s 303(1)(d), (f) and (h) of the Migration Act:

(a)    Mr Frugtniet’s 2013 application for repeat registration was known by him to be false or misleading in a material particular; and

(b)    Mr Frugtniet was not a person of integrity, or was otherwise not a fit and proper person     to give immigration assistance; and

(c)    Mr Frugtniet had not complied with clauses 2.1, 2.9 and 2.23 of the 2006 Code and clauses 2.9A and 2.23 of the 2012 Code.

TRIBUNAL PROCEEDINGS

40    Mr Frugtniet applied to the Tribunal for review of the MARA’s decision on 13 November 2014. The Tribunal held a directions hearing on 4 June 2015 at which Mr Frugtniet indicated that he objected to providing a statement of his own evidence or statements of other witnesses that he might wish to call on the basis of the privilege against exposure to penalties. Although Mr Frugtniet made written submissions in support of his objection, the MARA declined to make any submissions in response. The Tribunal dismissed the objection, with written reasons, on 30 July 2015: [2015] AATA 554; 67 AAR 92 (penalty ruling).

41    In the penalty ruling, the Tribunal considered Mr Frugtniet’s submission that the privilege against exposure to penalties extends to disciplinary proceedings, and that as a result the usual order made in Tribunal proceedings that an applicant for review lodge witness statements and give them to the other party or parties was inappropriate. The Tribunal considered that, having regard to the High Court’s decisions in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 (Daniels) and Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 (Rich), “unless Parliament has provided to the contrary, the penalty privilege will not apply to proceedings in the Tribunal as they are administrative, and not judicial, proceedings”: penalty ruling at [27]; emphasis in original. The Tribunal concluded that “[w]hen regard is had to the role of the Tribunal and to the particular provisions of the Migration Act relating to MARA’s powers regarding the continuing registration of a migration agent, it follows that there is nothing in the scheme of decision-making and review that suggests that Parliament had in mind to set aside the principles established by the High Court in Daniels and Rich”: penalty ruling at [31]. Having reached this conclusion and bearing in mind s 39(1) of the AAT Act, the Tribunal made orders for the parties to file evidence and contentions in advance of the hearing.

42    Mr Frugtniet and the MARA’s representative participated in a hearing before the Tribunal on 18 and 19 January 2016 to present evidence and submissions. On 11 May 2016, the Tribunal affirmed the decision under review, having concluded that it was “not satisfied that Mr Frugtniet can be trusted to act with the integrity, honesty and candour required of a registered migration agent”: at [138].

43    The issues that arose for determination by the Tribunal were:

1.    whether Mr Frugtniet’s 2013 application for repeat registration was known by him to be false or misleading in a material particular for the purposes of s 303(1)(d) of the Migration Act;

2.    whether Mr Frugtniet breached the Code of Conduct for migration agents within the meaning of s 303(1)(h) of the Migration Act by:

(a)    misleading or deceiving the MARA contrary to cl 2.9A of that Code by filing a false     or misleading application for repeat registration in 2013;

(b)    failing to act in accordance with the legitimate interests of his clients contrary to cl 2.1 of the Code and encouraging the making of false statements in support of an application under the Migration Act contrary to cl 2.9 of the Code, by participating in the scheme for the lodgement of a false work reference in relation to Mr Bastola;

3.    whether, having regard to these matters, Mr Frugtniet was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) of the Migration Act; and

4.    if so, what sanction should be imposed on him.

44    Mr Frugtniet also contended, as a preliminary issue, that neither the MARA nor the Tribunal could have regard to matters previously considered by the MARA in respect of earlier applications for registration where the MARA had decided to take no further action. The Tribunal rejected this contention. The Tribunal held that the power exercised by MARA on each application for repeat registration was “a separate exercise” or a “fresh exercise” of power in relation to an application by that agent for repeat registration “unconstrained by the matters to which it has had regard in exercising its power in relation to a different application by the same individual”: at [79]-[80]. In consequence, so the Tribunal held, the MARA was entitled to have regard to both historical and current information, providing it was relevant to the decision, since both historical and current information “are relevant for the whole of the applicant’s conduct ... in assessing whether a person is a fit and proper person for the purposes of the Migration Act and a person of integrity”: at [80].

1.    Did the applicant know his application for registration to be false or misleading in a material particular? – s 303(1)(d)

45    The first substantive issue that the Tribunal considered was whether Mr Frugtniet knew that his application for registration was false or misleading in a material particular.

46    The Tribunal found that Mr Frugtniet’s answer to question 29 of the application, set out at [32] above, was false. The Tribunal stated (at [91]) that:

Having regard to ... ordinary meanings, the TPB’s decision to refer concerns regarding his fitness and propriety and continued registration as a tax agent to its [Board Conduct] Committee must be regarded as a decision to investigate or inquire about those matters in the ordinary sense of those words. That is particularly so in light of the fact that the Board had delegated authority from the TPB to consider Mr Frugtniet’s continued registration and to make a decision about it. By answering Question 29 in the negative, I find that Mr Frugtniet failed to reveal an investigation or inquiry that had not previously been declared to MARA. That meant that his application for repeat registration was false. It was also misleading for it suggested that he was not the subject of any investigation or inquiry.

(Citation omitted.)

47    In reaching this conclusion, the Tribunal rejected each of Mr Frugtniet’s arguments that his answer to question 29 was not false or misleading. First, the Tribunal rejected his claim that he had previously advised the MARA of the TPB’s review of his registration as a tax agent in 2011, upon the basis that: (1) the MARA had no evidence of such disclosure and Mr Frugtniet had been unable to produce a copy of the attachment he claimed to have submitted to MARA at the time ([86]); and (2) this was not the first time that Mr Frugtniet had made a similar claim to have given written notification in relation to an application for registration as a migration agent but been unable to produce a copy of the notice he said he had given, referring to the reasons for judgment delivered by the Supreme Court in 2005 in Mr Frugtniet’s challenge to the rejection of his application for admission to practice. The Tribunal concluded (at [87]):

In light of that history, I do not accept Mr Frugtniet’s evidence that he had advised MARA of any inquiry or investigation in relation to the application that he made for repeat registration as a migration agent in 2011.

48    Secondly, the Tribunal rejected Mr Frugtniet’s argument that he was not required to disclose the investigation because the TPB was not conducting an investigation under the Tax Agent Services Act 2009 (Cth). The Tribunal held (at [90]) that question 29 was “not to be construed by reference to whether or not an investigation was provided for in a particular piece of legislation”, but rather by reference to the ordinary meaning of the words “investigation” and “inquiry”. As noted above, having regard to those ordinary meanings, the Tribunal concluded (at [91]) that the TPB’s decision to refer concerns regarding Mr Frugtniet’s fitness and propriety and continued registration as a tax agent to its Conduct Committee “must be regarded as a decision to investigate or inquire about those matters in the ordinary sense of those words”.

49    Lastly, the Tribunal rejected an argument put by Mr Frugtniet that he subsequently gave the MARA a copy of the TPB’s decision. The Tribunal found (at [94]) that:

His doing so does not alter the fact that he did not disclose the investigation or the inquiry when he knew about it at the time that he was answering Question 29. I am satisfied that Mr Frugtniet knew that his application for repeat registration as a migration agent dated 5 November 2013 was false or misleading.

50    As to whether the application was false or misleading in a material particular, the Tribunal found (at [93]) that since the TPB was a regulatory agency, “[c]learly ... investigations or inquiries it conducts about a person who is applying for repeat registration as a migration agent would be relevant to MARA’s consideration of that application”. The Tribunal went on to say (at [93]):

Fitness and propriety as well as integrity are factors relevant to both the TPB’s consideration of registration, or continued registration, of a tax agent and to MARA’s consideration of registration, or continued registration of a migration agent. The knowledge base each looks for will be different but the qualities of those who come before them are not. If the TPB has concerns about a person of such a sort that it has referred them to its Board, I am satisfied that the resulting investigation or inquiry is material to MARA’s consideration.

51    As to whether Mr Frugtniet knew that the application was false or misleading in a material particular, the Tribunal noted (at [94]) that Mr Frugtniet did not deny receiving the correspondence from the TPB but instead relied on the technical argument that the TPB had not been engaged in an investigation. Given, moreover, Mr Frugtniet’s long experience as a migration agent, the Tribunal was satisfied that he would have known that the MARA would be considering not only his knowledge but also his qualities in considering whether he was a fit and proper person and a person of integrity in the context of Pt 3 of the Migration Act. The Tribunal was, therefore, satisfied (at [94]) that, in answering question 29 “no” and in omitting to mention the TPB’s investigation or inquiry, Mr Frugtniet knew that his application was false or misleading in a material particular.

52    The Tribunal also found, for the same reasons, that Mr Frugtniet also knew that his application was false or misleading in a material particular when he answered question 30 in the negative. The Tribunal stated (at [95]) that “[b]y that time, he had long known that the TPB had decided to cancel his registration as a tax agent but he omitted any reference to it in his application”. The Tribunal concluded (at [97]):

It follows that I find that, Mr Frugtniet did not disclose any investigation or inquiry by the TPB when he made his application for repeat registration on 6 November 2013 and had not previously done so. His failure to disclose meant that his application was false or misleading in a material particular and I am satisfied that he knew that it was so.

2.    Did Mr Frugtniet breach the Code of Conduct? – s 303(1)(h)

Clause 2.9A

53    In relation to the 2013 application for repeat registration, the Tribunal was satisfied (at [101]) that, by giving the MARA incorrect information in circumstances where he would have known that information regarding investigations or inquiries of the sort being undertaken by the TPB was relevant to the MARA’s consideration of whether he was a fit and proper person and a person of integrity in the context of Pt 3 of the Migration Act, Mr Frugtniet deceived the MARA contrary to cl 2.9A of the 2012 Code.

54    The Tribunal held that its finding that Mr Frugtniet knew his application for repeat registration to be false or misleading did not, of itself, lead to the conclusion that he was in breach of cl 2.9A of the 2012 Code, set out above. The Tribunal stated (at [99]-[101]):

[Clause 2.9A] provides that the migration agent must not mislead or deceive MARA. The word “mislead” means:

“… 1 to make someone take a wrong or undesirable course of action. 2 to cause someone to have a false impression or belief. …”

The meanings of the word “deceive” include:

“… 1 to mislead or lie to someone. …”.

On the evidence, I am not satisfied that Mr Frugtniet has misled MARA when he answered Questions 29 and 30 incorrectly. There is no evidence that his answers caused it to have a false information or belief or made it take a course it would not otherwise have taken. It may be that they had that effect. Given that MARA did not grant his application for repeat registration but allowed it to be extended by operation of law, it is conceivable that it was not misled. There is insufficient evidence to make a finding either way.

Whether Mr Frugtniet deceived MARA by his answers to Questions 29 and 30 is a different issue. To lie to another is to deceive another even if that person does not believe the lie and so the deception. Mr Frugtniet did not give MARA the correct information in answering those questions. He gave incorrect information in circumstances in which he would have known that information regarding investigations or inquiries of the sort being undertaken by the TPB was relevant in MARA’s consideration of whether he was a fit and proper person and a person of integrity in the context of Part 3 of the Migration Act. I am satisfied that, in omitting any reference to the TPB’s investigation or inquiry, Mr Frugtniet deceived MARA contrary to cl 2.9A of the Code.

(Citations omitted.)

Clauses 2.1 and 2.9

55    The Tribunal then turned to consider whether Mr Frugtniet had breached the Code of Conduct in relation to the events surrounding the submission of the false work reference for Mr Bastola. In relation to the false reference submitted in relation to Mr Bastola, the Tribunal was satisfied (at [104]) that the reference was not written by Mr Evans, but it was not satisfied (at [106]) that Mr Frugtniet drafted the document, even though the use of his various contact details raised the suspicion that he did so or helped someone else to do so.

56    The Tribunal was, however, satisfied on the balance pf probabilities that Mr Frugtniet was a “key player” in the creation of the document and a key player in an attempt to mislead the TRA by means of a false reference in the name of Mr Glen Evans (at [107]). As also set out at [26] above, the Tribunal explained (at [107]) that:

I make that finding in light of the evidence to which I have also referred but also in light of the fact that it was his mobile number that was given as the number for TRA to telephone Mr Glen Evans. The times at which Mr Glen Evans said that he was available gave only a very narrow window within which the TRA could contact him. That window occurred between 9:30 am to 11:00 am on any day from Tuesday to Friday. The person who drafted the documents had to be confident that, in that window of time, the person who answered the mobile number would answer as Mr Glen Evans of Café Miro. If Mr Frugtniet had not been involved in the drafting of the documents at some level or another, one call to his number by officers of the TRA would have revealed to it that his mobile number had been misappropriated by another. That would have followed from Mr Frugtniet’s advising them that they had called the wrong number and that he was not Mr Glen Evans to whom they wished to speak. The drafter of the documents could not take the risk that this would be the response and had to be sure that, when the TRA called Mr Glen Evans on the mobile number, the person answering the call would respond as Mr Glen Evans. Mr Frugtniet has not given evidence that he had mislaid his mobile before 9 August when the letter was written by Mr Glen Evans.

57    The Tribunal concluded (at [109]) that Mr Frugtniet had not acted in the legitimate interests of his client, Mr Bastola, contrary to cl 2.1 of the 2012 (and 2006) Code of Conduct, and had at least encouraged the making of statements that he knew to be misleading or inaccurate in support of an application under the Migration Act or the Migration Regulations contrary to cl 2.9 of the 2012 (and 2006) Code of Conduct. It stated (at [109]):

What I have found to be Mr Frugtniet’s part in setting up a false reference in relation to Mr Bastola’s work experience and skills leads me to conclude that he has not acted in the legitimate interests of his client. That is contrary to cl 2.1 of the Code in whichever form it is drafted. Even when the TRA, as the assessing authority, made its assessment in favour of Mr Bastola, Mr Frugtniet knew that the basis of that assessment was flawed because it had been made on a false basis. He knew that because he knew of the part he played in the false reference even if he had not seen the actual application that had been made to the TRA. That is contrary to cl 2.9 of the Code, however drafted. In acting for Mr Bastola in applying for the Class 880 visa, Mr Frugtniet has, at least, encouraged the making of statements, which he knew to be misleading or inaccurate and done so in support of an application under the Migration Act or Migration Regulations.

58    The Tribunal rejected (at [111]) Mr Frugtniet’s submission that his conduct could be excused because, at the time Mr Bastola’s application was lodged with TRA, the TRA had not been validly specified as an assessing authority under the Migration Act, on the basis that whether the TRA had been validly specified as an assessing authority did not affect its findings regarding Mr Frugtniet’s conduct.

59    The Tribunal also rejected (at [117]) Mr Frugtniet’s submission that it should have drawn an adverse inference from the MARA’s failure to call Mr Bastola as a witness in the proceeding, citing the rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298. Mr Frugtniet alleged (at [112]) that “Mr Bastola had worked with Australia Post and had opportunity to intercept his mail”. Mr Frugtniet invited the Tribunal to infer that Mr Bastola had prepared the false documents submitted to the TRA, from the MARA’s failure to call Mr Bastola at the Tribunal hearing.

60    Referring to the decision of the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63]-[64] and the analysis of Senior Member Fice in Confidential and Commissioner of Taxation [2012] AATA 178; 88 ATR 222 at [23]-[24], the Tribunal noted (at [115]-[116]) that such an inference could only be drawn if there was evidence that provided a foundation for the supposed inference, and held that there was none. In particular, the Tribunal held (at [116]) that there was no evidence to support the claim that Mr Bastola had tampered with Mr Frugtniet’s mail and that, in circumstances where the evidence indicated that Mr Bastola was a willing participant in the submission of false documents to the TRA, his failure to be called as a witness did not permit any adverse inference to be drawn that would favour Mr Frugtniet’s case (at [117]).

3.    Was the applicant a fit and proper person and person of integrity? – s 303(1)(f)

61    After referring to numerous authorities, including Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127, Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 and New South Wales Bar Association v Murphy [2002] NSWCA 138; 55 NSWLR 23, the Tribunal stated (at [129]-[131]):

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. ...

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.

62    The Tribunal accepted that Mr Frugtniet’s conduct was to be considered over time and against the background of “all that he has done” (at [134]). As regards the ASIC and the TPB, the Tribunal stated (at [134]):

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.

63    After referring to the decisions of the Supreme Court in 2002 and 2005, discussed above, the Tribunal concluded (at [137]) that:

The findings that I have made in relation to [Mr Frugtniet’s] 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 [a] 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.

64    Under the heading “What sanction should be imposed?” the Tribunal stated (at 138]):

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.

Appeal under s 44 of the AAT Act

65    Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to this Court on a question of law from a decision of the Tribunal. Mr Frugtniet appealed to this Court under s 44. The questions of law and grounds identified in his Amended Notice of Appeal were lengthy. They sufficiently appear from the summary of the parties’ submissions set out below that it is unnecessary to set them out in full in these reasons.

The Parties’ Submissions

Grounds 1 and 2

66    Under grounds 1 and 2 of his Amended Notice of Appeal, Mr Frugtniet contended that the Tribunal had erred in considering “administrative decisions previously exhausted and spent”, and in doing so asked “the wrong question and gave rise to irrelevant matters being considered”.

67    Mr Frugtniet submitted the Tribunal did not have power to revisit and take into account the disciplinary proceedings that had been initiated by the MARA, where the MARA had concluded that no further action would be taken. Mr Frugtniet submitted that the provisions of the Migration Act should be interpreted so as to promote “the requirements of good administration and the need for people affected directly or indirectly by decision to know where they stand”, and the Migration Act manifested an intention to preclude recognition of such prior disciplinary proceedings.

68    Mr Frugtniet submitted that the Tribunal “misconstrued and misapplied the legislation on the basis that it was fresh exercise of power, which it was not, or else it would ‘annihilate the effects of a finding made by MARA in the determinations it made pursuant to a previous exercise of power’ in disciplinary proceedings”. Referring to Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 542; 88 ALD 115 (MIMIA v Watson), among other authorities, Mr Frugtniet submitted that “the legislation may reveal an intention that the decision making power should not be exercised more than once”. The question was, so Mr Frugtniet submitted, “whether the statute pursuant to which the decision maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen”.

69    The MARA submitted that the Tribunal was correct in its conclusion that its power to take such a matter into account is not “exhausted” once it has considered it in relation to a previous application. The MARA submitted that it was not correct to say that the Tribunal was seeking to “revisit” the MARA’s previous findings by referring to the matters that the MARA had considered in a previous application. Rather, so the MARA submitted, the Tribunal considered the earlier matters as relevant to the conduct of Mr Frugtniet since those matters had occurred.

70    The MARA contended that its previous findings were to be understood in the specific context in which the matters in question were raised and did not involve “some sort of general review” of Mr Frugtniet’s conduct that in some way foreclosed those matters being relied on to assess his conduct at a later point in time. The MARA drew attention to a statement in its letter to Mr Frugtniet dated 19 December 2005 that, following the notice sent to Mr Frugtniet in July 2002, Mr Frugtniet had been warned in its letter of 3 February 2003 that although no further action was to be taken at that time in relation to his failure to disclose the charges laid against him while an employee of the ANZ Bank, this failure might be taken into account in future deliberations “should further information regarding this matter come to the attention of the [MARA] or should the content of this complaint demonstrate a pattern of behaviour, which is disclosed in other complaints”. The MARA also drew attention to a similar reservation in its letter of 26 July 2006 regarding Mr Frugtniet’s failure to disclose an investigation by Centrelink leading to criminal charges that were subsequently dismissed. The MARA submitted that the Tribunal was correct to observe that “the evidence needs to be viewed as a whole and the pattern that it forms can change over time”.

Ground 3

71    By ground 3, Mr Frugtniet contended that the Tribunal took irrelevant considerations into account in concluding that his 2013 application for repeat registration was known by him to be false and misleading in a material particular. Under this ground, Mr Frugtniet contended that the Tribunal erred by relying on findings of the Victorian Supreme Court in 2005 in relation to his previous attempts to excuse a failure to disclose information to the MARA.

72    Mr Frugtniet submitted that the Tribunal “failed in the construction it gave towards the definition of false or misleading in relation to material particular in that it accepted that had it [been the] first time it would have been inclined to accept the applicant’s evidence, but failed to consider that the matter had been investigated with it [being] resolved that no further action be taken”. Mr Frugtniet further submitted that “to give weight to matter upon which no finding of falsity was established in order to establish the falsity of the 2013 repeat application was consideration of irrelevant factors and a failure to take relevant factors into account in applying the definition of false or misleading in material particular and that the applicant had knowledge of the same”.

73    At the hearing before this Court, Mr Frugtniet reiterated that the conclusion that the application was known by him to be false was not open on the evidence, and that in taking into account the remarks of the Victorian Supreme Court in 2005, the Tribunal took into account an irrelevant consideration. Mr Frugtniet also submitted that the Tribunal had erred in its construction of the definition of “false or misleading” because it accepted that if it had been the first time he had given this kind of explanation, the Tribunal would have been inclined to accept his explanation. The Tribunal failed, Mr Frugtniet submitted, to consider that the previous matter had been investigated and resolved, and that no further action had been taken.

74    Mr Frugtniet submitted that the Tribunal should have considered whether in the circumstances an innocent or inadvertent mistake “would not vitiate that [Mr Frugtniet] had made a false or misleading statement”. Mr Frugtniet further submitted that the Tribunal’s finding that “any such falsity or misleading statement was material particular, is without foundation, in that there is no evidence that such answers caused MARA to have a false information or belief or made it take a course it would otherwise not have taken”.

75    The MARA submitted that the Tribunal was entitled to evaluate Mr Frugtniet’s evidence in the context of the excuses he had previously advanced for failing to disclose information to the MARA, and that he had been on notice of the need to keep a record of relevant correspondence. To the extent that Mr Frugtniet submitted that the failure to disclose information was inadvertent or a mistake, the MARA submitted that “[s]uch a contention is directly inconsistent with the Applicant’s own evidence that he did in fact disclose the information to MARA in the previous year” and “[t]he fact that the Tribunal rejected that evidence did not oblige it to consider whether there was some alternative, inconsistent explanation for the failure of MARA to receive it”. Further, the MARA submitted that “ to the extent that any submission was made by the Applicant that the failure to disclose the information was a result of inadvertence or mistake, the Tribunal must be taken to have rejected it by finding that [Mr Frugtniet] gave incorrect information to MARA in circumstances where he would have known that the information was relevant to MARA’s consideration of whether he was a fit and proper person and a person of integrity in the context of Part 3 of the [Migration Act]”.

76    The MARA further submitted that it could not be said that providing information weeks after a false or misleading declaration was made could “vitiate” the false or misleading nature of the declaration at the time it was made.

Ground 4

77    It may be recalled that the Tribunal found that Mr Frugtniet knew that his 2013 application for repeat registration was false or misleading. It also held that this finding did not necessarily also involve a breach of cl 2.9A of the 2012 Code, which provided that, in his or her communications, a registered migration agent must not mislead or deceive the MARA, whether directly or by withholding relevant information.

78    Under ground 4, Mr Frugtniet contended that the Tribunal erred in concluding that the MARA could be “deceived” by him in the absence of his knowledge of the application’s falsity or as a result of inadvertence or mistake.

79    In written submissions filed before the hearing, Mr Frugtniet submitted that:

The Tribunal’s failure to consider that to deceive another required knowledge on the part of the applicant, and did not extend to a failure to inadvertently make a mistake, nor did it consider that pursuant to cl 2.9A of the Code that by omitting reference to an investigation or inquiry was based on the TPB confirming to the applicant’s knowledge that no investigation had been conducted including the fact that a decision had been made by which time if one did accept that there was an investigation/enquiry then it had concluded in early 2013, so that it could not be said that the authority was deceived.

80    The MARA responded that the Tribunal’s findings, as disclosed in its reasons for decision, left no scope for the argument made by Mr Frugtniet, which therefore must fail.

81    At the hearing, the Court raised with the parties whether the Tribunal was correct to conclude (at [101]) that, although it could not be said that Mr Frugtniet had misled the MARA since there was no evidence that the MARA had been led into error by his false or misleading answers when making his 2013 application, nonetheless Mr Frugtniet had, by these answers, deceived the MARA. Pursuant to orders of the Court, both parties filed written submissions on the proper construction of cl 2.9A of the 2012 Code, particularly as to what was meant by “mislead or deceive the Authority”.

82    In its submissions, the MARA contended that in interpreting cl 2.9A the focus should be on the objective character of the actions of the agent as having a tendency to lead into error, rather than on the subjective impact of those actions on the MARA, because this accorded with the purpose of cl 2.9A, which was “to establish a proper standard for the conduct of migration agents so as to protect vulnerable clients from the actions of incompetent and unscrupulous advisers”, citing Cunliffe v Commonwealth [1994] HCA 44; 182 CLR 272 (Cunliffe) at 294. The MARA also drew attention to the opening and closing words of cl 2.9A, submitting that the opening words “envisage that an agent can mislead or deceive [the MARA] merely in ‘providing information to’ the Authority” and that the closing words contemplated that “an agent may mislead or deceive the Authority ‘by withholding relevant information’”. The MARA noted that the opening words referred to “conduct which is defined solely by reference to the acts of the agent, rather than the effect of those acts on the beliefs or actions of the Authority [and] is conduct which is complete before the Authority considers or acts on the information”. In respect of the closing words, the MARA submitted that “this is conduct which does not depend on any response or reaction of the Authority; rather, it only involves actions of the agent – actions that occur before the Authority has taken any steps to review or act on the information”. The MARA submitted that the construction that it advocated was also supported by the legislative history of cl 2.9A, as discussed below.

83    The MARA further argued that, if, contrary to its submissions, the Court were to find relevant error, then this error was not material to the Tribunal’s decision and could not therefore have resulted in a different outcome before the Tribunal, citing Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (Stead) and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 (Aala). The MARA submitted that the Tribunal’s construction of cl 2.9A led it to conclude that Mr Frugtniet had breached cl 2.9A by failing to disclose the TPB’s investigation in his 2013 application when he knew that this was material to his eligibility for re-registration by the MARA. The MARA accepted that, if the Tribunal erred in this respect, its finding of breach of cl 2.9A would not have been open to it. Notwithstanding this, the MARA continued:

However, the same conduct also led the Tribunal to conclude the Applicant’s application for repeat registration was known by him to be false or misleading in a material particular under s 303(1)(a) of the Act, and (in conjunction with his involvement in the provision of fraudulent documentation to Trades Recognition Australia) that he was not a fit and proper person or a person of integrity within the meaning of s 303(1)(f) of the Act.

Those conclusions are unaffected by any error of the Tribunal in relation to cl 2.9A. Accordingly, it cannot be said that the Tribunal would have lacked jurisdiction to sanction the Applicant if it had not found a breach of cl 2.9A. Rather, that finding merely provided an additional basis for the Tribunal’s exercise of jurisdiction.

Further, it is clear from the Tribunal’s reasons that its decision to cancel the Applicant’s registration (rather than impose a lesser sanction) was based on the character of the conduct it had found the Applicant to have engaged in, rather than the particular provisions of the Act or the Code he may have breached. In particular, the Tribunal relied on the deliberate nature of the Applicant’s actions, and the way in which they reflected on his integrity, honesty and candour…

Those conclusions, too, are entirely unaffected by any error the Tribunal may have made in relation to cl 2.9A. Regardless of the legal consequences of the Applicant’s conduct in terms of contraventions of particular provisions of the Act or the Code, therefore, the essential character of that conduct remains unchanged – and it was that essential character which led the Tribunal to impose the sanction that it did.

On that basis, it cannot be said that any error the Tribunal may have made in relation to the construction of cl 2.9A was material to the Tribunal’s decision, or that any different result could follow if the matter were remitted to the Tribunal for reconsideration according to law.

84    Mr Frugtniet reiterated his submission that the Tribunal’s conclusion about the meaning of the term “deceive” was in error. He submitted that:

It is evidently clear from the Migration Act 1958 that the context of s 303(1)(a-c) 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 whereas under 2.9A, 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 is on any view different to what is considered as false being a statement or information that is purposely untrue.

85    Mr Frugtniet submitted that the words “mislead” and “deceive” were “tautologous”. Mr Frugtniet submitted that “nothing postulated within the provision 2.9A would give rise to any additional requirement that it is ‘likely to mislead’, and should not be so casually dismissed because of obiter remarks when such an amendment was necessary to overcome the difficulties” (emphasis in original). He added “the addition of the words ‘or is likely to mislead or deceive’ to the prohibition [in the Trade Practices Act 1974 (Cth)] in 1977 obviated the need to prove that conduct has actually led anyone into error” citing Google Inc. v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435 at [6].

86    Referring to Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346 at [64] and Hill v Repatriation Commission [2005] FCAFC 23; 218 ALR 251 at [81], Mr Frugtniet argued “this Court cannot be confident that there is no possibility that the decision reached might be different” and that the Tribunal’s decision should be set aside and the matter remitted to it for determination according to law.

Ground 5 and 6

87    Under grounds 5 and 6, Mr Frugtniet submitted that the Tribunal erred by failing to take into account whether he had provided “immigration assistance” to Mr Bastola in connection with the false work reference, or whether the TRA was validly appointed. At the hearing Mr Frugtniet emphasised that the date on which the application to the TRA was made meant that it did not fall within the definition of “immigration assistance”, and that the definition of “immigration assistance” in s 276 of the Migration Act does not refer to an application to a body such as the TRA. Mr Frugtniet also submitted that Tribunal’s finding that he had played a part in the application for a skills assessment was contrary to the evidence, and that the Tribunal erred in accepting that an application to the TRA could be misleading or inaccurate when the TRA was not validly appointed.

88    The MARA submitted that Mr Bastola was a client for Mr Frugtniet for the purposes of cl 2.1 of the Code, and the documentation submitted to the TRA were statements that were “made in support of an application under the Migration Act or Migration Regulations” for the purposes of cl 2.9 of the Code. In these circumstances, the MARA submitted that “the Tribunal was plainly correct to treat the question of whether Mr Frugtniet’s involvement in the submission of false documentation to the TRA fell within or outside of the definition of ‘immigration assistance’ as irrelevant to the determination of whether Mr Frugtniet breach the Code in the manner alleged”.

89    The MARA further submitted that “the question of whether an applicant has submitted false or misleading information or documentation in connection with a visa application is entirely separate from the question of whether that information or documentation has legal effect under the relevant legislation”, referring to Batra v Minister for Immigration and Citizenship [2013] FCA; 212 FCR 84 at [60]. Accordingly, so the MARA submitted, the Tribunal was correct to treat the question of whether or not the TRA was validly specified as irrelevant to the determination of the question of whether Mr Frugtniet had encouraged the making of statement in support of an application under the Migration Act that Mr Frugtniet knew to be misleading or inaccurate.

Ground 7

90    Under ground 7, Mr Frugtniet contended that the Tribunal erred by failing to draw an adverse inference from the MARA’s failure to call Mr Bastola as a witness and in accepting the evidence of Mr Bastola over that of Mr Frugtniet .

91    The MARA submitted that Mr Frugtniet’s contention was without foundation as the Tribunal did not rely on any “evidence” from Mr Bastola in concluding that Mr Frugtniet was involved in the false work reference submitted to the TRA.

92    The MARA also submitted that the Tribunal was correct to conclude that no Jones v Dunkel inference should have been drawn from the failure to call Mr Bastola as a witness.

Ground 8

93    Under ground 8, Mr Frugtniet contended that the “Tribunal took irrelevant matters into account in that having examined the matters in relation the un-successful applications made to the Supreme Court were examined in full pursuant to disciplinary action taken by MARA and it was found by MARA that it could not be satisfied that [Mr Frugtniet] was not a fit and proper person”. Mr Frugtniet further submitted that “the VCAT matter was notified to MARA in 2011 and no such issues arose at the time, but when it came to determine these matters any such prohibition on being a lay associate which [Mr Frugtniet] was never one or intending to become one had expired became relevant to its consideration”.

94    The MARA submitted that the Tribunal was entitled to have regard to the judgments of the Victorian Supreme Court in assessing the nature and seriousness of Mr Frugtniet’s more recent conduct. The MARA submitted that the fact that VCAT’s “prohibition on Mr Frugtniet acting as a lay associate had expired by the time the Tribunal came to make its decision does not alter the underlying nature of the conduct which led to that prohibition being imposed, or the similarity between the dishonest character of that conduct and Mr Frugtniet’s dishonesty in connection with the application to the TRA”.

Ground 9

95    Under ground 9, Mr Frugtniet contended that the Tribunal had erred in its decision in the penalty ruling in concluding that the privilege against exposure to penalties did not apply to administrative proceedings. Mr Frugtniet stated that the Tribunal erred in rejecting his reliance on the privilege because “the provisions of the Migration Act invoked exposed [him] to strict liability offences, disadvantaged [him] in permitting the [MARA] to admit new evidence at the hearing previously not produced in the s 37 documents, and dismissed a procedural rule that it was not applicable in administrative proceedings”.

96    At the hearing, Mr Frugtniet emphasised that it was not appropriate to limit the application of the privilege against exposure to penalties to judicial proceedings, given that the proceedings before the Tribunal in this matter involved the loss of his office, disqualification and the loss of his livelihood. He submitted that the application of the privilege in the Tribunal flowed as “a natural feature of procedural fairness”.

97    The MARA contended that no error was apparent from the Tribunal’s penalty ruling and Mr Frugtniet had failed to identify any error. The MARA submitted that the Tribunal was correct to conclude, on the basis of the authorities, that the privilege had no application to proceedings before the Tribunal.

Ground 10

98    By ground 10, Mr Frugtniet apparently contended that a reasonable apprehension of bias arose because the Deputy President who constituted the Tribunal conducting the review of the MARA’s decision also constituted the Tribunal in a stay application in relation to ASIC’s decision to ban Mr Frugtniet from credit activities. Mr Frugtniet also drew attention to the Deputy President’s handling of procedural matters such as directions in another matter before the Tribunal involving him and the TPB. In his reply to the MARA’s submissions, Mr Frugtniet contended that in refusing the stay in the ASIC matter, the Deputy President “drew an adverse inference that [he] had not been truthful in statements attributed to him”.

99    The MARA contended that that there was no “logical connection” between the refusal of a stay application in relation to one administrative decision, and the review of a different decision, other than on its merits. The MARA noted that the issues for determination in relation to the stay of ASIC’s ban on Mr Frugtniet engaging in credit activities were entirely different from those arising in the review of the MARA’s decision under review. It also noted that there was no evidence that the Tribunal made any observations about Mr Frugtniet’s credibility in the course of dealing with the stay application that might give rise to such an apprehension of bias. It said further that the fair-minded lay observer, who is taken to possess knowledge of the actual circumstances of the case, would know that the Tribunal did not in fact have regard to the facts underlying the ASIC decision in reaching its conclusions about the cancellation of Mr Frugtniet’s registration as a migration agent. There was, it submitted, no basis for the fair-minded lay observer reasonably to apprehend that, as a real and not remote possibility, the Tribunal might not bring an impartial mind to the review of the cancellation decision. Further, by participating in the hearing before the Tribunal without objection, Mr Frugtniet had waived any entitlement to challenge the Tribunal’s decision on that basis, citing Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [76].

100    At the hearing, Mr Frugtniet stated that, under ground 10, he in fact sought to contend that, if the matter were remitted to the Tribunal, it should be remitted to a differently constituted Tribunal. Mr Frugtniet did not press what appeared to be his earlier contention as to a reasonable apprehension of bias.

CONSIDERATION

Grounds 1 and 2

101    Subject to legislative direction to the contrary, the Tribunal is required to make the correct or preferable decision on the material before it and in the circumstances as they exist at the time of its decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 (Shi). In the present case, as in Shi, the Tribunal was engaged in a review “on the merits” of the MARA’s decision to cancel a migration agent’s registration under s 303(1) of the Migration Act. As Shi confirms, the nature and legislative incidents of the decision to be made show that the Tribunal was not confined to the record before the MARA but was required to make that decision on all the evidence before it at the time the decision was made.

102    In reviewing the MARA’s decision, s 43(1) of the AAT Act empowered the Tribunal to exercise the powers and discretions conferred by the Migration Act on the MARA. In this case, the question for the Tribunal was, first, whether the Tribunal was satisfied that any of the grounds in paragraphs (d), (f) or (h) of s 303(1) was made out; and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend Mr Frugtniet’s registration, or to caution him. In the circumstances of the case, the Tribunal had, therefore, first to determine whether it was satisfied that: (1) Mr Frugtniet’s 2013 application for repeat registration was known by him to be false or misleading in a material particular (s 303(1)(d)); (2) Mr Frugtniet “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” (s 303(1)(f)); and/or (3) Mr Frugtniet had not complied with the Code of Conduct (s 303(1)(h)). The second question was what, if any, sanction it should impose.

103    In determining these questions, the Tribunal was “not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”: AAT Act, s 33(1)(c). The Tribunal may have regard to evidence that is “logically probative” and relevant to the issues before it: Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 2 ALD 33; appeal dismissed in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 31 ALR 666; 4 ALD 139 (Smithers, Evatt and Deane JJ). As explained below, the fact that aspects of Mr Frugtniet’s conduct had been considered by the MARA on earlier occasions did not deprive the evidence about that conduct of its relevance or cogency with respect to the questions that arose for the Tribunal’s consideration, particularly under s 303(1)(f) of the Migration Act.

104    As the Tribunal observed, the MARA’s consideration of each of Mr Frugtniet’s applications for registration involved it in separate exercises of power. Neither the MARA nor the Tribunal were precluded from considering an aspect of Mr Frugtniet’s conduct simply because it had considered such conduct on an earlier occasion and in the circumstances that existed at that earlier time.

105    It was, for example, open to the Tribunal to assess the cogency of Mr Frugtniet’s evidence concerning more recent events in light of his past conduct, as the Tribunal did in rejecting Mr Frugtniet’s evidence that he had disclosed the TPB’s investigations to the MARA in 2011, when he had no documentary evidence that he had so done and the MARA had no record of such a disclosure. It was open to the Tribunal (at [87]) to determine that his inability to produce any documentary evidence to support his claim made it more probable than not that his evidence ought not be accepted, having regard to the fact that he had been put on notice at an earlier date in relation to a similar claim of the need to retain documentary records.

106    Furthermore, in considering whether Mr Frugtniet was not a person of integrity or otherwise not a fit and proper person to give immigration assistance, it was clearly open to the Tribunal to have regard to all the circumstances that it considered bore on the question. It was therefore open to the Tribunal to conclude that Mr Frugtniet’s earlier conduct cast light on the significance of his more recent conduct. The fact that the MARA had previously considered this earlier conduct did not deprive the Tribunal of the capacity to consider whether the evidence about it was relevant to any issue it was required to determine in the circumstances of the present case and, if so, how much weight should be accorded that evidence and the considerations to which it gave rise.

107    There was, moreover, no element of unfairness to Mr Frugtniet, as his argument at one point suggested, in the Tribunal having regard to previously considered conduct even though the MARA had not earlier imposed a sanction in respect of that conduct. As the letters to which the MARA referred showed, Mr Frugtniet was repeatedly told by it that it might reconsider its assessment of his conduct should circumstances change, for example, in the event of further complaints about conduct of a similar kind.

108    The case of MIMIA v Watson, to which Mr Frugtniet referred, concerned s 501(2) of the Migration Act, which empowered the Minister to cancel a visa on character grounds. A Full Court of this Court held that once the power had been exercised to cancel a visa, the cancellation could not be revoked. As Hely J noted at [10], “[a] decision of the Minister to cancel a visa on character grounds under s 501(2) of the Act, if validly made, has the result that the visa thereupon ceases to be in effect”. A determination by the MARA that it would not impose a sanction in respect of certain conduct had no analogous substantive effect under the Migration Act and that Act provides no support for Mr Frugtniet’s submissions that this conduct could not be considered by the Tribunal (or the MARA) at a later date in relation to a different decision as to the exercise of power under s 303(1) of the Migration Act.

109    Mr Frugtniet’s contention that the Tribunal erred in concluding that it was open to it to take into account matters previously considered by the MARA that were relevant and probative to the questions before the Tribunal is without foundation. Grounds 1 and 2 of Mr Frugtniet’s amended notice of appeal should be rejected.

Ground 3

110    Ground 3 should also be rejected, in large part for the reasons already set out in relation to grounds 1 and 2. In particular, I reject Mr Frugtniet’s submission that the Tribunal took into account irrelevant considerations by relying on findings of the Victorian Supreme Court in 2005 in relation to his previous attempts to excuse a failure to disclose information to the MARA.

111    First, as already stated at [105] above, as part of its fact-finding function, the Tribunal was entitled to assess Mr Frugtniet’s evidence about having notified the MARA of the TPB investigation, in light of his previous history of non-disclosure of information and the explanation he had previously provided for that non-disclosure.

112    Secondly, so far as concerns the relevancy of matters taken into account, the Tribunal will err in law only if it fails to take into account a matter that it was bound to take into account or takes into account a matter that it was bound to disregard. Whether or not a matter falls within either description depends on the subject-matter, scope and purpose of the governing statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40. There is nothing in the subject-matter, scope or purpose of Pt 3 of the Migration Act that indicates that the Tribunal was forbidden from having regard to any previous non-disclosure of information by an applicant for registration and any previous excuse the applicant gave for that non-disclosure. On the contrary, the nature of the regulatory regime in Pt 3, which governs migration agents and the provision of immigration assistance, indicates that a consideration of this kind may, depending on the circumstances, be highly relevant, including in decision-making under s 303, particularly bearing in mind the provision for a limited term of registration and the need for annual application for re–registration.

113    To the extent that Mr Frugtniet submitted that the Tribunal failed to consider his submission that his failure to disclose the TPB investigation was a result of inadvertence or a mistake, that submission must be rejected. It is clear from the Tribunal’s statement at [94] that the Tribunal specifically found that Mr Frugtniet knowingly answered question 29 on the application (see [32] above) in the negative. It must therefore have rejected Mr Frugtniet’s submission to the contrary.

114    The fact that Mr Frugtniet subsequently provided a copy of the TPB’s decision, in response to a notice under s 308(1)(c) of the Migration Act, could not, as Mr Frugtniet submitted, “vitiate” the Tribunal’s finding that his 2013 application for repeat registration was false or misleading at the time that it was made.

115    For these reasons, ground 3 must fail.

Ground 4

116    The proposition advanced by Mr Frugtniet under this ground, that the Tribunal erred in concluding that the MARA could be deceived in the absence of his knowledge of the falsity of his answers to questions 29 and 30, must be rejected. As already noted, the Tribunal specifically found that Mr Frugtniet lied because he knowingly answered the questions falsely and, further, he did so in circumstances where he would have known that the information sought was relevant to the MARA’s consideration, in the context of Pt 3 of the Migration Act, of whether he was a fit and proper person to give immigration assistance or a person of integrity. There is therefore no room for the supposition that the provision of false information was inadvertent, mistaken or done without Mr Frugtniet’s knowledge.

117    Following the hearing, at the Court’s invitation, the parties in written submissions addressed a further issue as to whether it was open to the Tribunal, as a matter of law, to find that Mr Frugtniet deceived, though he did not mislead, the MARA, within the meaning of cl 2.9A of the 2012 Code. Clause 2.9A stipulated that, in providing information to the MARA, a registered migration agent was not to mislead or deceive the MARA, whether directly or by withholding relevant information. The issue is whether, in a case where the Tribunal is satisfied that an agent has knowingly provided misleading or false information, to support a finding of breach of this clause, must the Tribunal also be satisfied that there is evidence that this information “caused [the MARA] to have a false information or belief or made it take a course it would not otherwise have taken” (see [100] of the Tribunal’s reasons).

118    For the reasons I am about to state, there was, in my view, no relevant error on the Tribunal’s part in its application of cl 2.9A of the 2012 Code.

119    Although the 2012 Code is to be found in Sch 2 to the Migration Agents Regulations 1998 (Cth), its existence is attributable to s 314 of the Migration Act. The principles that guide the interpretation of the 2012 Code are similar to those that apply to statutory interpretation. The object of the interpretative process is to arrive at the intention of the regulation-maker, by ascertaining the meaning of the provision in question, here cl 2.9A, in conformity with the accepted interpretative principles: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398. The Court must “give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78] (Project Blue Sky) and adopt much the same approach with respect to delegated legislation.

120    The Court commences with the text of the provision in question. The legal meaning will often, although not in every case, correspond with the grammatical and ordinary meaning of the text: see Project Blue Sky at [78]; Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [40]. In the case of cl 2.9A, the issue here is, as discussed below, not resolved by reference to any one grammatical and ordinary meaning.

121    The definitions of the word “mislead” in the online Macquarie Dictionary (www.macquariedictionary.com.au) are:

1.    To lead or guide wrongly; lead astray

2.    To lead into error of conduct, thought, or judgement.

Another definition of the same word in the online Oxford Dictionary (www.oed.com) is:

1.    trans.

a Originally: to lead astray in action or conduct, to lead into error (now rare). In later use (now the usual sense): to deceive by giving incorrect information or a false impression (of a situation, etc.); to delude or misinform.

The definitions of “deceive” in the online Macquarie Dictionary are:

–verb (t) 1.  to mislead by a false appearance or statement; delude.

2.  to be unfaithful to; commit adultery against.

3. Obsolete to beguile or while away (time, etc.).

–verb (i) 4.  to practise deceit; act deceitfully.

Other definitions of the word “deceive” in the online Oxford Dictionary are:

†1. trans. To ensnare; to take unawares by craft or guile; to overcome, overreach, or get the better of by trickery; to beguile or betray into mischief or sin; to mislead. Obs. (or arch.)

...

2.  a. To cause to believe what is false; to mislead as to a matter of fact, lead into error, impose upon, delude, ‘take in’.

...

b. absol. To use deceit, act deceitfully.

122    The definitions set out above indicate that, at least in some contexts, there may be no relevant difference in meaning between the words “mislead” and “deceive”. It is probably fair to say that even if the words as they appear in cl 2.9A are not entirely synonymous, their meanings overlap. Further, and importantly here, both words may apply sometimes to describe the conduct of the actor only and at other times the actor’s conduct and its effect on another.

123    The ordinary meanings do not indicate which of these possibilities was intended in cl 2.9A. As in statutory construction so here, the purpose of the provision, the context of the words in question, the consequences of a construction, or a principle of construction may justify the Court in determining that one meaning as opposed to another accords with the maker’s intention.

124    Broadly speaking, the purpose of Pt 3 of the Migration Act is to require that registered migration agents conduct themselves as such competently and honestly, in order to protect vulnerable clients from incompetence and dishonesty: see Cunliffe 182 CLR 272 at 294 (Mason CJ), 313 (Brennan J), 333 (Deane J). The focus in Pt 3 is on the character and conduct of the agent. It is his or her character and conduct that the provisions of this Part are designed to ensure are of such a kind to protect a migration agent’s clients against incompetence and dishonesty. It is clear, therefore, that to interpret the words “mislead or deceive” in cl 2.9A so as to apply to the actions of the agent only would best accord with the purpose of the clause. On this preferred view, the misleading or deceit is to be determined by reference to the agent’s conduct alone, irrespective of the MARA’s response to the agent’s deceitful act or wrong guidance.

125    Further, the Code of Conduct prescribed by regulations made under s 314 is evidently intended to govern the conduct of registered migration agents in their work as such. This indicates that the 2012 Code should be interpreted so as to offer direct and practical guidance to them in the way they must conduct their work. This further indicates that liability for breach of the standard set out in cl 2.9A should not depend on the state of mind of the MARA, particularly as whether or not the MARA was in fact misled or deceived at the time it made its decision might depend on its own actions or the actions of another party in the meantime.

126    The legislative history of cl 2.9A of the 2012 Code, moreover, confirms this interpretation. As we have seen (see [16] above), prior to January 2012, cl 2.9A provided that, in communicating with or otherwise providing information to the MARA, a registered migration agent must not “seek to” mislead or deceive the MARA. Under this version, the effect of the agent’s conduct on the MARA was irrelevant. The words “seek to” were removed by the Migration Legislation Amendment Regulations 2011 (No 2) (Cth). The Explanatory Statement to these regulations indicated that the intended effect of the amendment was to “remove the mental element inherent in the words ‘seek to’ so that the focus is on the action of the registered migration agent”; and that the amendment was intended to “draw a closer parallel between an agent’s obligations under the Code and consumer protection legislation”: Migration Legislation Amendment Regulations 2011 (No 2) (Cth) Explanatory Statement, pp 12-13. That is, the amendment removed the element of intention that lay in the words “seek to” with respect to the agent’s conduct and, in so doing, aligned cl 2.9A with provisions such as s 18 of the Australian Consumer Law (ACL) in Sch 2 of the Competition and Consumer Act 2010 (Cth), where an objective assessment is made of whether the conduct is misleading or deceptive or likely to mislead or deceive: see, e.g. Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [10].

127    This is not to say, however, that cl 2.9A is to be interpreted in all respects as s 18 of the ACL. The differences in the text, purpose and context of the two provisions would make this erroneous: compare Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; 206 FCR 92 at [72].

128    There are, however, other indications in the text of cl 2.9A that support the view that the MARA’s state of mind is not critical to the operation of this clause. The opening words of cl 2.9A contemplate that an agent can mislead or deceive the MARA simply by “providing information”, including “by withholding relevant information”. In both instances, the text focuses on the acts of the agent, including actions before the MARA has taken any steps to act on the information that is given or withheld. This would appear to provide further support for the proposition that, in applying cl 2.9A, the critical question is whether the agent’s provision of information to the MARA was objectively speaking such as to mislead or deceive, whether in a direct sense or through a failure to make a full disclose. Viewed in this way, there was no error on the Tribunal’s part in finding that Mr Frugtniet had breached cl 2.9A by omitting any reference to the TPB’s investigation or inquiry from his 2013 application for registration as a migration agent, even though there was no evidence that the MARA had in fact been deceived. It seems to me that the only error that the Tribunal might have made is in respect of its finding that it was not satisfied that Mr Frugtniet had misled MARA because there was “no evidence that his answers caused it to have a false information or belief or made it take a course it would not otherwise have taken” (at [100]). It is, however, unnecessary to say anything further about this: no such error would have had any bearing on the Tribunal’s decision. Further, neither party made any specific submission on this point.

129    If I am wrong about the interpretation of “mislead or deceive” in cl 2.9A, then it seems to me that any error on the Tribunal’s part could have made no difference to the result. Mr Frugtniet did not lose a possible chance of a different outcome before the Tribunal. The Tribunal held, as a matter of fact, that Mr Frugtniet knowingly gave false or misleading answers to Questions 29 and 30 by failing to disclose to the MARA the TPB’s investigation in his 2013 application for registration and that he knew that this omission was material to his eligibility for registration. The Tribunal relied on this holding with respect to its application of s 303(1)(d), (f) and (h). Each of these provisions provided a separate basis for the Tribunal’s decision that the decision of the MARA to cancel Mr Frugtniet’s registration should be affirmed. If his failure to disclose the TPB’s investigation could not support the Tribunal’s finding that Mr Frugtniet acted in breach of cl 2.9A of the 2012 Code (a finding relevant to s 303(1(h)), it nonetheless remained open to the Tribunal to rely on the same finding with respect to s 303(1)(d), that his registration application was known by him to be false or misleading in a material particular, and (along with its findings concerning his involvement in the provision of fraudulent documentation to the TRA) that he was not a fit and proper person or a person of integrity within s 303(1)(f).

130    Accordingly, Ground 4 cannot succeed. I interpolate here that Mr Frugtniet made no application to amend this ground, or to add any other ground with respect to cl 2.9A of the 2012 Code.

Grounds 5 and 6

131    It is by no means clear that the submission of a pre-migration skills assessment application to the TRA would not fall within the definition of “immigration assistance” in s 276 of the Migration Act, as Mr Frugtniet apparently contended. Thus, for example, the Tribunal, in Re Stolar and Migration Agents Registration Authority [2007] AATA 1245; 45 AAR 255; 95 ALD 437 at [49], held that advising a prospective visa applicant in relation to the steps necessary to obtain a skills assessment for the purposes of a visa application did indeed constitute the giving of “immigration assistance” within the meaning of s 276. It is not, however, necessary to decide this point here. This is because, irrespective of whether the definition in s 276 would cover such advice, it is clear that Mr Frugtniet’s involvement in submitting false documentation to the TRA breached the Code of Conduct, as the Tribunal held.

132    As already noted, the Tribunal was satisfied, on the balance of probabilities, that Mr Frugtniet was a key player in the creation of the false work reference from the Café Miro and that he was a key player in an attempt to mislead the TRA by means of this reference. The Tribunal further observed that the success of Mr Bastola’s visa application, which was the express subject of the services and fee agreement between Mr Frugtniet and Mr Bastola, depended on a successful skills assessment. On the basis of its findings regarding Mr Frugtniet’s involvement in creating the false work reference, the Tribunal concluded that Mr Frugtniet had breached cl 2.1 and cl 2.9 of the 2012 Code (or earlier version). Mr Bastola was a “client” of Mr Frugtniet for the purposes of cl 2.1 of the Code, at least by the time Mr Frugtniet lodged Mr Bastola’s visa application on his behalf. Because of Mr Frugtniet’s involvement in creating the false reference concerning Mr Bastola’s work experience, Mr Frugtniet knew, as the Tribunal found, that the basis of the TRA’s favourable assessment of Mr Bastola’s work experience was false. The Tribunal held that, in making the visa application on Mr Bastola’s behalf, Mr Frugtniet had encouraged the making of statements that he knew to be misleading or inaccurate in support of an application under the Migration Act or Migration Regulations, contrary to cl 2.9 of the Code. There is no error shown in this finding. On the facts as found by the Tribunal, there was also no error in the Tribunal’s further finding that Mr Frugtniet had not acted in the legitimate interests of his client, contrary to cl 2.1 of the Code. It was, in these circumstances, unnecessary for the Tribunal to consider whether the submission of a pre-migration skills assessment application to the TRA fell within the definition of “immigration assistance” in s 276 of the Migration Act. This did not affect its determination that Mr Frugtniet had breached cll 2.1 and 2.9 of the Code.

133    I also reject Mr Frugtniet’s submission that an application to the TRA, and documentation provided in support of the application, cannot be misleading or inaccurate if the TRA was not validly appointed. In Batra v Minister for Immigration and Citizenship [2013] FCA 274; 212 FCR 84 at [60], the Court held that the fact that a skills assessment was of no legal effect because the TRA had not been validly appointed did not affect its conclusion that a skills assessment was a “bogus document” within s 97(c) because it had been obtained because of a “false or misleading statement”. This reasoning has been applied in subsequent cases: see, e.g., Nanre v Minister for Immigration and Border Protection [2015] FCA 528; 232 FCR 80 at [29]-[30]; and Thind v Minister for Immigration and Border Protection [2014] FCA 207 at [17].

134    No error has been shown in the Tribunal’s conclusion that whether the TRA was validly appointed or not did not affect its determination that Mr Frugtniet encouraged the making of statements in support of an application under the Migration Act or Migration Regulations that he knew to be misleading or inaccurate.

135    As explained above, grounds 5 and 6 must fail.

Ground 7

136    I reject Mr Frugtniet’s submission that the Tribunal erred because it accepted Mr Bastola’s evidence in preference to that of Mr Frugtniet. As the Tribunal’s reasons for decision make clear, the Tribunal did not rely on evidence from Mr Bastola in reaching its conclusion about Mr Frugniet’s involvement in the creation of the false work reference submitted to the TRA. Rather, the Tribunal relied on evidence from Mr Glenn Evans, the director of Café Miro, as well as on other evidence, including Mr Frugtniet’s own evidence regarding his connection to matters within the false reference.

137    Further, the Tribunal did not err in concluding that a Jones v Dunkel inference should not be drawn from the MARA’s failure to call Mr Bastola as a witness. The rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298 is that “the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case”: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63]. Mr Frugtniet claimed that Mr Bastola had worked with Australia Post and had an opportunity to intercept his mail and that the MARA’s failure to call him should have led the Tribunal to infer that Mr Bastola, not he, had prepared the false work reference. As the Tribunal noted, there was no evidence that supported such an inference (whether in relation to Mr Bastola’s employment as a postal worker or otherwise); and Mr Frugtniet did not articulate any proposition that could have been said to require explanation or contradiction by the MARA, through Mr Bastola. The rule in Jones v Dunkel cannot “be used to fill gaps or to convert suspicion into inference”: Jones v Dunkel 101 CLR 298 at 313 (Menzies J); see also Chen v Chan [2008] VSCA 280 at [65].

138    Ground 7 must therefore fail.

Ground 8

139    I reject Mr Frugtniet’s submission that the Tribunal took into account irrelevant considerations when it relied on findings in the judgments of the Victorian Supreme Court and the VCAT decision in finding that Mr Frugtniet was not a person of integrity or otherwise not a fit and proper person to provide immigration assistance.

140    In assessing the character and gravity of Mr Frugtniet’s recent conduct, it was open to the Tribunal to have regard to the findings of the Victorian Supreme Court in its 2002 and 2005 judgments. As explained above, I would reject Mr Frugtniet’s submission that the matters considered in those judgments were no longer relevant because they had been previously considered by the MARA, in the context of earlier determinations to take no disciplinary action. It was, as already stated, open to the Tribunal to have regard to these findings in assessing the nature and seriousness of Mr Frugtniet’s more recent conduct. In determining whether or not it should find that Mr Frugtniet was not a person of integrity or otherwise not a fit and proper person to provide immigration assistance, it was clearly open to the Tribunal to have regard to the fact that his recent conduct exhibited the same kind of characteristics as identified by the Supreme Court with respect to his conduct on earlier occasions.

141    Although VCAT’s prohibition on acting as a lay associate had expired by the time the Tribunal came to make its decision, this did not alter the dishonest nature of the conduct that led to the imposition of the prohibition. It was open to the Tribunal to have regard to that previous dishonesty in assessing the gravity of Mr Frugtniet’s more recent dishonest conduct.

142    I can therefore discern no error on the Tribunal’s part, of the kind Mr Frugtniet asserts under ground 8 and this ground therefore fails.

Ground 9

143    It was open to Mr Frugtniet to challenge in this proceeding what the parties have referred to as the Tribunal’s “penalty ruling” (see Kishore v Tax Practitioners Board [2016] FCA 1328; 244 FCR 320 at [31] and News Corporation Ltd v National Companies and Securities Commission [1984] FCA 446; 5 FCR 88 at 95, 103, 122); and, for the reasons set out below, I accept Mr Frugtniet’s contention that the Tribunal erred in concluding that the privilege against exposure to penalties was incapable of applying in proceedings before the Tribunal.

144    As already stated, Mr Frugtniet relied on the privilege against exposure to penalties in opposing the direction that he provide a statement of his own evidence or statements of any other witnesses he might wish to call. Such a direction was in conformity with the usual direction given by the Tribunal that an applicant for review first lodge witness statements and give them to the other party. As noted, the Tribunal rejected Mr Frugtniet’s submissions and directed as follows:

1.    On or before 11 September 2015, the applicant must give to the Tribunal and the respondent:

(a)    any witness statement from any witnesses proposed to be called at the hearing;

(b)    all reports, records and any other documents on which the applicant intends to rely at the hearing; and

(c)    a Statement of Facts, Issues and Contentions; and

2    On or before 9 October 2015, the respondent must give to the Tribunal and the applicant:

(a)    any witness statement from any witnesses proposed to be called at the hearing;

(b)    all reports, records and any other documents on which the respondent intends to rely at the hearing; and

(c)    a Statement of Facts, Issues and Contentions.

145    If the privilege against exposure to penalties applied in the proceeding before the Tribunal, then it can be said that the Tribunal erred in law in making this direction.

146    It may be accepted that exposure to cancellation of registration as a migration agent (and the affirmation of such a decision on review) is in the nature of exposure to a penalty. There are a number of cases in which it has been held that exposure to loss of office or disqualification from holding office is exposure to a penalty or forfeiture: see Rich 220 CLR 129 at [28]-[37] and the cases there cited; see also Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101 at [59]. According to the plurality judgment in Rich at [37], “equity’s concern with penalties was never confined to pecuniary penalties. If exposure to loss of office or exposure to dismissal from a police force is exposure to penalty, exposure to a disqualification order is exposure to a penalty” (emphasis in original; citation omitted). The cancellation of Mr Frugtniet’s registration as a migration agent is of the same nature as a disqualification from holding office.

147    Court procedures must take account of the position of a person who properly claims the privilege from exposure to penalties. For example, in Rich, it was held that once it is determined in judicial proceedings that the proceedings expose a person to a penalty the proper course is to refuse any order for discovery: 220 CLR 129 at [39]; see also CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 1141 (CSL v MUA). In Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132; 130 FCR 37 (ACCC v FFE Building Services) a Full Court of this Court held that it was correct to refuse an application for an order that the natural respondents to an application against them for civil penalties file and serve statements of evidence before the close of the applicant’s case, on the basis that the respondents were entitled to the privilege against exposure to penalties. Decisions such as Rich make it clear that if a party properly claims the benefit of the privilege against exposure to penalties and forfeiture, courts will act to protect the claimant appropriately. It may be assumed that if the same privilege can properly be claimed before an administrative body, then the procedures adopted by that body must also offer the claimant suitable protection.

148    The question is whether the rule of common law that a party is not obliged to answer any question or provide any information that might expose him or her to the imposition of a penalty is capable of application in a non-judicial context, such as a proceeding before the Tribunal. As the Tribunal noted, a number of decisions of the High Court bear on this question, including Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 (Pyneboard); Sorby v Commonwealth [1983] HCA 10; 152 CLR 281 (Sorby); Police Service Board v Morris [1985] HCA 9; 156 CLR 397 (Police Service Board v Morris); Daniels 213 CLR 543; and Rich 220 CLR 129.

149    In Pyneboard 152 CLR 328, the High Court held that, as a matter of statutory construction, a person served with a notice under s 155 of the Trade Practices Act 1974 (Cth) (requiring the provision of information or documents) could not rely on the privilege against exposure to penalties as a basis for non-compliance, even though the information or the documents might lead to exposure to civil liability to penalties under that Act. In a joint judgment, Mason ACJ, Wilson and Dawson JJ held (at 344-345) that the privilege against exposure to penalties was impliedly excluded by the statute. Brennan J also approached the issue as one of statutory construction: Pyneboard at 349. Only Murphy J held (at 346) that the penalties privilege did not apply in non-judicial proceedings.

150    In their joint judgment, Mason ACJ, Wilson and Dawson JJ noted that there were two lines of judicial authority on the issue whether the privilege against exposure to penalties applied to non-judicial proceedings. One line favoured its application; the other did not. At 341, their Honours held that the privilege was not incapable of applying in a non-judicial proceeding, stating that:

There is a stronger reason for holding that the privilege is available in the case of an examination on oath before a judicial officer which is a preliminary to committal for trial or summary prosecution than there is in the ordinary case where a statute imposes an obligation to answer questions, provide information or produce documents. On the other hand, if the object of imposing the obligation is to enable an authority or agency to ascertain whether an offence has been committed or a statutory provision has been contravened then it is reasonable to conclude that the privilege, though inherently capable of applying, has been impliedly, if not expressly, excluded by the statute.

In light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself. In the consideration of that question it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication.

(Emphasis added; citations omitted)

151    Sorby 152 CLR 281, which was delivered on the same day as Pyneboard, was concerned with the application of the privilege against self-incrimination in the context of an inquiry by a Royal Commissioner. In Sorby, Mason, Wilson and Dawson JJ held (at 309) that the privilege against self-incrimination was not merely a rule of evidence applicable in judicial proceedings and that it was not for that reason unavailable in a non-judicial inquiry. Their Honours added (at 309) that they adhered to their conclusion in Pyneboard that the privilege against self-incrimination in inherently capable of applying in non-judicial proceedings. Murphy J also adhered to his position in Pyneboard: Sorby at 311. Brennan J concluded (at 317-321) that historically the privilege against self-incrimination had been limited to judicial proceedings and that in principle the privilege should be so limited. Gibbs CJ took the contrary view: Sorby at 300.

152    A majority of the High Court in Police Service Board v Morris 156 CLR 397 held that the privilege against exposure to penalties was capable of applying in a non-judicial proceeding, namely, before the Victorian Police Discipline Board. The Board was empowered to reprimand a member of the police force who had contravened s 88(1) of the Police Regulation Act 1958 (Vic), or to impose a penalty of not more than $500, to demote or dismiss the member from the force. In a joint judgment, Wilson and Dawson JJ reiterated that the privilege against exposure to penalties was capable of application in non-judicial proceedings: at 407-408. Gibbs CJ agreed with this proposition: at 403. Brennan J also proceeded on this basis: at 411. Murphy J adhered to his view that the privilege did not apply in non-judicial proceedings: at 406-407. In this case, however, Gibbs CJ, Wilson, Brennan and Dawson JJ held that the privilege was excluded by Regulation 95A(7), which provided that “no member of the Force shall ... disobey ... any lawful order”. Wilson and Dawson JJ explained (at 410) that:

Regulation 95A in its application to a case such as the present is clearly relevant to the efficiency of the force and ... its breadth is such as to admit of no qualification. ... The legislature must have intended that any cause for suspicion touching a member’s performance of his duties could be the subject of interrogation by a superior officer and that the member would be obliged to answer the questions put to him whether or not those answers would tend to incriminate him. ... [W]e would have thought that the efficiency of the force demands this and the loyalty promised by every member when he takes the oath prescribed by the Act reinforces it.

153    To recapitulate, after the decision of the High Court in Police Service Board v Morris 156 CLR 397, the law, as applied in that case and Pyneboard and supported by Sorby, was that the privilege against exposure to penalties was capable of applying in non-judicial proceedings, such as those in the Tribunal. A different perspective was expressed in a comment in the subsequent case of Daniels.

154    The High Court in Daniels 213 CLR 543 again considered s 155 of the Trade Practices Act 1974 (Cth), although, in that case, it was concerned with whether the provision required the production of documents to which legal professional privilege attached. The Court in Daniels did not follow Pyneboard in so far as the decision turned on the construction of s 155. Gleeson CJ, Gaudron, Gummow and Hayne JJ stated (at [27]-[29]) that:

Section 155(2) authorises what would otherwise constitute a trespass. In that respect, it is similar to the search warrant provision in s 10 of the Crimes Act 1914 (Cth) considered in Baker v Campbell [(1983) 153 CLR 52] and, later, in [Commissioner of Australian Federal Police v] Propend [Finance Pty Ltd (1997) 188 CLR 501]. Those decisions, which were subsequent to the decision in Pyneboard, respectively held and confirmed that that provision did not authorise the seizure of material to which legal professional privilege attached. Given the generality of the words of s 10 of the Crimes Act 1914 (Cth) and their similarity to the words of s 155(2), it is difficult to see any basis upon which that sub-section can be construed, consistently with Baker v Campbell and Propend, as authorising entry to premises for the purpose of inspecting and copying material to which legal professional privilege attaches.

The other difficulty with the approach adopted by Mason A-CJ, Wilson and Dawson JJ in Pyneboard is that, as already noted, it renders the express abrogation, in s 155(7), of the privilege against incrimination otiose. As a general rule, statutory provisions are to be construed by giving effect to their express terms unless that would result in some absurdity. No absurdity is involved in construing ss 155(1) and (2), in accordance with the rule expressed in Potter v Minahan, as not abrogating fundamental common law privileges and giving effect to s 155(7) according to its terms.

Given the difficulties with the approach adopted by Mason A-CJ, Wilson and Dawson JJ in Pyneboard, that approach should not be followed in this case for the purpose of determining whether a person may resist a notice under s 155(1) of the Act on the ground of legal professional privilege. So to say, is not to say that Pyneboard was wrongly decided.

(Citations omitted.)

155     On the last point, their Honours explained (at [30]-[31]) that:

The implication that the privilege against exposure to penalties was abrogated by s 155(1) can be supported by reference to the absurdity that would result if that privilege could be claimed and, pursuant to s 155(7), the privilege against self-incrimination could not. However, it may be that a more secure basis for the decision is to be found in the nature of the privilege.

In Naismith v McGovern [(1953) 90 CLR 336 at 341-342], Williams, Webb, Kitto and Taylor JJ said:

Originally orders for discovery were not obtainable at common law, except to a limited extent, and a party to a common law action who desired general discovery had to proceed by bill in equity. But the Court of Equity would not make an order for discovery or for the administration of interrogatories in favour of the prosecutor whether the prosecutor was the Crown or a common informer or any other person where the proceeding was of such a nature that it might result in a penalty or forfeiture: 'nemo tenetur seipsum prodere'. When discovery and interrogatories were provided for under the rules made under the Judicature Act the same principle was applied.

Today the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. However, there seems little, if any, reason why that privilege should be recognised outside judicial proceedings. Certainly, no decision of this Court says it should be so recognised, much less that it is a substantive rule of law. ...

(Emphasis added; citations omitted.)

156    No question arose for resolution in that case, however, as to the application in non-judicial proceedings of the privilege against exposure to penalties; and it is plain enough that their Honours’ observations about the application of this privilege were obiter dictum. Further, it would also not be correct to read into this last-mentioned observation more than was actually stated. It would not be correct to view these two brief sentences as requiring the conclusion that the law with respect to application of the privilege in a non-judicial context, as set forth in Police Services Board v Morris, had been over-turned.

157    Finally, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ (Kirby J dissenting) in Rich 220 CLR 129 held that the privilege against exposure to penalties was applicable in a proceeding in which ASIC applied to the New South Wales Supreme Court for declarations as to contraventions of the Corporations Act 2001 (Cth) and for orders including for the disqualification of directors from managing a corporation for a period of years. As noted, their Honours held that to seek an order disqualifying a person from acting in the management of a corporation on the ground he or she had contravened the law was to seek a penalty or forfeiture. Thus, that person was entitled to rely on the privilege against exposure to penalties in the Supreme Court proceedings. Where the privilege was properly claimed (as in that case), then any application for discovery against a director was to be refused.

158    In Rich, no question about the application of the privilege against exposure to penalties in non-judicial proceedings arose for determination. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ nonetheless observed, obiter, in Rich 220 CLR 129 at [24] that:

As was further pointed out in the joint reasons in [Daniels], the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings. In the present matter, however, the only issue is about the application of these privileges to discovery in judicial proceedings. No wider question arises.

(Citations omitted.)

159    The passage highlights that Rich was concerned only with the operation of the privilege against exposure to penalties or forfeiture in relation to discovery in judicial proceedings. So far as the present issue is concerned, the passage may indicate no more than that their Honours were not prepared in Rich to attribute to these privileges the same attributes as legal professional privilege.

160    The High Court has since considered the privilege against exposure to penalties and related privileges in judicial proceedings, although it has not addressed its application in non-judicial proceedings. Thus, in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; 256 CLR 375 (CFMEU v Boral) the Court held that an order for discovery might be made in a civil proceeding for contempt instituted by the respondents against the union: see [37]-[38] and [43]-[44] (French CJ, Kiefel, Bell, Gageler and Keane JJ). In a separate judgment, Nettle J agreed in the result, but emphasised that neither the privilege against self-incrimination nor against exposure to penalties is available to a corporation as a basis for resisting a statutory requirement for the production of documents, although these privileges would be available to a natural person in a civil proceeding for criminal contempt: 256 CLR 375 at [56]-[57], [67], citing amongst other cases, Rich at [24]. The Court in CFMEU v Boral distinguished X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 (X7) and Do Young Lee v The Queen [2014] HCA 20; 253 CLR 455 (Do Young Lee). In the former case, it was held that there was not a sufficiently clear manifestation of statutory intention to displace the fundamental principle that a natural person who had been charged with a serious criminal offence could not be compelled to answer questions in the course of a compulsory examination about the offence: compare also Do Young Lee 253 CLR 455 at [32]-[34]. None of these subsequent cases touched on the present question; and none detracts from the conclusion that the law with respect to the application of the privilege against exposure to penalties in a non-judicial context is as set forth in Police Services Board v Morris.

161    Turning to the decisions in this Court, it is evident that these decisions have mostly concerned the application of the privilege against exposure to penalties in judicial proceedings. In ACCC v FFE Building Services 130 FCR 37 at [29], Emmett, Hely and Jacobson JJ held, with respect to a civil proceeding in the Court for the recovery of pecuniary penalties, that an application by the ACCC for orders that the natural respondents file and serve statements of their proposed evidence should be refused on the basis that it was inconsistent with the privilege. The Court stated, relevantly for this case (at [14]):

By requiring an individual respondent, prior to the closure of an applicant’s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent.  The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty.

(Citation omitted.)

162    ACCC v FFE Building Services has been regularly applied in the Federal Court: see, e.g., Australian Securities and Investments Commission v Whitebox Trading Pty Ltd (No 3) [2017] FCA 429 (Foster J); CSL v MUA [2016] FCA 1141 (Perram J); Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; 164 FCR 32 (ASIC v Mining Projects Group) (Finkelstein J); and Hadgkiss v Construction, Forestry, Mining and Energy Union [2005] FCA 1453; 146 IR 106 (Graham J). See also Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corp (1979) 42 FLR 204 at 210-211 (Deane J).

163    In ASIC v Mining Projects Group 164 FCR 32, which involved a civil proceeding to recover a pecuniary penalty, Finkelstein J held (at [12]) that the “penalty privilege operates to relieve a defendant from the need to deliver a defence that complies with the pleading rules if the rules would override the privilege”. His Honour noted (at [13]) that if this were to create a practical problem, it too might be resolved:

There is a potential problem if, as in this case, a defendant wishes to run a positive case.  Ordinarily a positive case must be raised in the defence.  Whether it must be raised in a defence in a civil action to recover a penalty is by no means clear.  The view I favour is that there can be no such requirement as it would be inconsistent with the privilege.  On the other hand, if a defendant who wishes to run a positive case is required to plead his case that can be accommodated while maintaining the privilege.  What should occur is that the defendant should be entitled to rely on the privilege until the plaintiff’s case is concluded.  If at that point the defendant decides to run a positive case he can deliver an amended defence that will outline his case.  In an exceptional case the judge may grant a short adjournment to allow the plaintiff time to prepare, if he is otherwise taken by surprise.  In most cases that will not be necessary.  By the time the plaintiff has closed his case the nature of the defence will usually be apparent.  That is the experience of those who prosecute criminal cases.  The advocate who runs a civil penalty proceeding should be equally adept at dealing with the defendant and his witnesses without knowing in advance every word they are about to say.

164    The Full Court’s decision in Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 (Griffin v Pantzer) provides some more direct guidance on the availability of the privilege against exposure to penalties in non-judicial proceedings. In that case, the Full Court identified the privilege against exposure to penalties as an historically recognised and fundamental principle of the general law, the availability of which, as stated in Pyneboard, Sorby and Police Services Board v Morris, was not limited to a court setting and was subject to the principle of legality.

165     Griffin v Pantzer concerned the existence of the privilege against self-incrimination in the examination of a bankrupt under s 81 of the Bankruptcy Act 1966 (Cth). The Full Court held in that case that, as a matter of statutory construction, the privilege against self-incrimination was abrogated in circumstances where the bankrupt was obliged to answer questions during an examination pursuant to summons, in relation to the summonsed production of books at an examination, and in respect of the obligation imposed on the bankrupt under s 77(1)(a): see [175]-[177], [185], [187]-[189]. Although considerations affecting an examination of a bankrupt are not precisely the same as those affecting a proceeding in the Tribunal, the reasoning of Allsop J, with whom Ryan and Heerey JJ agreed, is pertinent to the present question. In discussing and ultimately rejecting the appellant’s submission that there was no clear intention to abrogate the privilege against self-incrimination in s 77, 81, 129 and 130 of the Bankruptcy Act as these provisions applied to an examination, Allsop J stated (at [43]-[46]) that:

The privilege not to answer questions or produce documents which have a tendency to expose the person to a criminal charge, or a penalty or to forfeiture has been recognised by the High Court as a deeply rooted principle of the general law: R v Associated Northern Collieries at 748; Sorby at 294, 309, 311; Pyneboard at 340, 341, 347; and Reid v Howard at 11-12, which can now be expressed also in terms of a human right: Environment Protection Authority v Caltex Refining Co Pty Ltd at 498.

The consequence of the recognition by the High Court that the privilege is one deeply rooted in the law as a fundamental right is that it is not merely a rule of evidence available in judicial proceedings, it is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question or produce a document: Pyneboard at 340-341; Sorby at 309; and Police Service Board v Morris (1985) 156 CLR 397.

Prior to Pyneboard, it had been generally expressed that the privilege was inherently incapable of application in non-judicial proceedings. In this form, it was seen as a testimonial privilege. That was the view of Wigmore, Wigmore on Evidence at [2263], of the United States Supreme Court: see, for example, Re Harris 221 US 274 (1911), and of the Full Courts of New South Wales and Victoria: see the cases cited in Pyneboard at 337-338; and see generally Phipson on Evidence pp 198-203. There was, however, a contrary line of authority: see the discussion in Pyneboard at 337-340.

It is presumed that Parliament does not intend to interfere with fundamental principles or rights including entrenched general law rights, such as the privilege against self-incrimination, without expressing its intention clearly, whether by express words or necessary implication: Potter v Minahan (1908) 7 CLR 277 at 304; Sorby at 294-5, 309-310; Baker v Campbell (1983) 153 CLR 52 at 96-7, 116, 123, 132; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Annetts v McCann (1990) 170 CLR 596 at 598; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427 at 437; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501; Daniels at [11], [43], [88]-[94] and [132]-[134]; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [30].

(Emphasis added.)

166    In other words, the Full Court in Griffin v Pantzer identified the privilege against exposure to penalties as a principle of the general law, the availability of which was not limited to a court setting, and held that its statutory abrogation was subject to the principle of legality.

167    Flick J applied Griffin v Pantzer, in Tsiamis v Comcare [2013] FCA 684; 60 AAR 506, in dismissing an appeal from the Tribunal under s 44(1) of the AAT Act. Accepting that the privilege against self-incrimination might be properly claimed by a witness in the Tribunal’s proceedings, his Honour held (at [19]) that Ms Tsiamis, who was an applicant for review in the Tribunal, was not denied a “reasonable opportunity” to be heard within the meaning of s 39 of the AAT Act because she was unable to elicit information from a witness before the Tribunal who properly relied on the privilege. His Honour specifically held that that provision did not prescribe a hearing in which a witness would be compelled to abandon the common law privilege. His Honour stated (at [19]):

There is no denial of a “reasonable opportunity” for the purposes of s 39 of the Administrative Appeals Tribunal Act in circumstances where a witness properly invokes a privilege against self-incrimination. Although s 33(1)(c) of that Act provides that the Tribunal is not bound by the rules of evidence, that freedom does not carry with it the ability to require a witness to answer questions which (for example) may expose him to self-incrimination.

168    Furthermore, the law as stated in Griffin v Pantzer 137 FCR 209 is consonant with the law as stated in other intermediate appellate courts in this country. This is significant in answering the present question about the availability of the privilege against exposure to penalties in non-judicial proceedings: see CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [50] (Gummow, Heydon and Crennan JJ); [63] (Hayne J); and S v Boulton [2006] FCAFC 99; 151 FCR 364 at [27] (Black CJ).

169     As in this Court, other intermediate appellate courts have mostly considered the operation of the privilege against exposure to penalties in a curial context: see, for example, Anderson v Australian Securities and Investments Commission [2012] QCA 301; 297 ALR 546; and Alishah v Gunns Ltd [2010] TASFC 6; 20 Tas R 305. So far as the present question is concerned, however, decisions of the Courts of Appeal of the Supreme Courts of New South Wales and of Victoria are on point. These decisions support the proposition that the privilege against exposure to penalties is capable of applying in a non-judicial context and, in particular, in a Tribunal such as the Administrative Appeals Tribunal.

170    In Valantine v Technical and Further Education Commission [2007] NSWCA 208; 166 IR 459 (Valantine), the Court of Appeal of the Supreme Court of New South Wales held that the privilege against exposure to penalties was properly invoked by the appellant, a teacher who was exposed to the penalties of reduction of rank and loss of salary in proceedings before the State’s Government and Related Employees Tribunal. The Court of Appeal held that, in consequence, the appellant ought not to have been ordered to make discovery.

171    In holding that the privilege could apply to proceedings in the State Tribunal, Gzell J, with whom Beazley and Tobias JJA agreed, examined the authorities, including Pyneboard, Sorby, Police Service Board v Morris, Daniels and Rich. His Honour concluded (at [72]) that “the better view is that the privilege is capable of application to quasi-judicial proceedings such as those in the present case” and that the Court was not “constrained by precedent to find to the contrary”. His Honour explained that the rationale for the privilege was applicable to the formal sittings of the Tribunal, referring, amongst other things, to the procedural and legislative context in which the Tribunal made its decision. His Honour treated as relevant the fact that sworn evidence was taken, and that the appellant’s employer had an evidentiary onus of proof: see Valantine 166 IR 459 at [74]. In further addressing the question whether the privilege applied in the Tribunal proceedings, his Honour also treated the process set in train by the legislation as relevant, stating (at [89]-[93]):

The penalty was imposed by the senior officer appointed by the Commission to deal with alleged breaches of discipline. It was not imposed by the Tribunal. The question arises whether the privilege should apply to proceedings before the Tribunal under which, in terms of the Government and Related Employees Appeal Tribunal Act, s 48(2), the Tribunal may allow or disallow an appeal or make such other decision with respect to the appeal as it thinks fit. The Tribunal has, on one occasion, (Tania Sheldon v Managing Director, NSW Technical and Further Education, appeal No 492 of 1995, 16 April 1997), dismissed an appeal from a decision to reduce the teacher’s rank and decided that she should be dismissed. In other words, it imposed a greater penalty than that against the imposition of which the teacher had appealed. 

The process by which a penalty is initially imposed under the Government and Related Employees Appeal Tribunal Act for a disciplinary breach is in the nature of an administrative proceeding. Oral evidence is not called and the senior officer acts upon such documentation as is put before that officer.

In contrast, the issues are ventilated before the Tribunal in the manner of curial proceedings. Those proceedings can result in penalties imposed below being overruled, confirmed or increased. The jeopardy that an appellant will suffer if required to produce documents that expose the appellant to a penalty is just as much present in the proceedings before the Tribunal as it is in proceedings in a courtroom.

In Calman v Commissioner of Police (1999) 73 ALJR 1609 at [26]-[30], Gaudron ACJ, McHugh, Gummow, Kirby and Callinan JJ discussed the role of the Tribunal. They noted that various provisions of the Government and Related Employees Appeal Tribunal Act disclosed that the Tribunal was empowered to inquire into the merits of a disciplinary matter before it, at a formal hearing and in a manner that was distinct from the process adopted by the administrative decision-maker at first instance. They concluded that a disciplinary proceeding in the Tribunal was by the operation of s 48(2), in substance, a fresh exercise of administrative power and, in that sense, the “appeal” might be described as an administrative hearing de novo.

In entering upon that administrative hearing de novo, the Tribunal acts in a quasi-judicial capacity and, in my view, there is good reason why the privilege against exposure to penalties should apply to its powers to order discovery by an appellant. ...

172    The New South Wales Court of Appeal held that the application of the privilege against exposure to penalties applied to constrain the Tribunal’s powers to order discovery and that witness statements could only be ordered at the close of the employer’s case if the appellant elected to go into evidence.

173    On this last-mentioned point, Gzell J stated (at [94]):

If at the close of an employer’s case the appellant elects to go into evidence, it may be appropriate for the Tribunal to order the appellant to lodge the statements of witnesses who are intended to be called before the Tribunal and provide copies to the Commission. It may also be appropriate for the Tribunal then to order an appellant to lodge a written case and provide a copy to the Commission.

174    Subsequently, the Court of Appeal of the Supreme Court of Victoria in Towie v Medical Practitioners’ Board of Victoria [2008] VSCA 157; 29 VAR 252 (Towie) stated that it considered that the privilege against exposure to penalties was available in a proceeding before VCAT. Towie concerned a proceeding instituted in VCAT by the appellant, a medical practitioner who sought review of a decision made by the respondent Medical Practitioners’ Board, holding that the appellant had engaged in unprofessional conduct and ought to receive a reprimand. It is sufficient, for present purposes to note that, at the outset, a direction, in standard form, was made that the appellant file and serve “witness statements and any further documents upon which he intend[ed] to rely”. Before dealing with other ultimately determinative issues, the Court (constituted by Redlich and Weinberg JJA, and Mandie AJA) referred to the decisions of Mandie J in Australian Securities and Investments Commission v Plymin [2002] VSC 56; 4 VR 168 and of Finkelstein J in ASIC v Mining Projects Group 164 FCR 32 (which addressed the High Court authorities as they stood at that time) and stated at [9]:

[I]n circumstances where the alleged breach of those directions in main part gave rise to the order now appealed against, we should indicate that, in our view, the usual directions given at VCAT, would not generally be appropriate where an applicant seeks to review disciplinary proceedings and is a person who is or may be exposed to a penalty. A party may, in such cases, be required to file written grounds and an outline of argument which identifies in broad terms what is in issue on the application for review. But it will not ordinarily be appropriate that directions be given which require the applicant for review to provide an outline of argument, or any other written material, which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the case advanced against the applicant has been completed.

The Victorian Court of Appeal in Towie thus accepted that the privilege against exposure to penalties applied in VCAT proceedings, although it may be true to say that this ruling was not the basis on which the outcome of the appeal ultimately turned.

175    The ruling in Towie was considered and applied by the Victorian Court of Appeal, in MH6 v Mental Health Review Board [2009] VSCA 184; 31 VAR 226 (MH6). Before VCAT, the applicant had applied for review (by way of re-hearing) to set aside an involuntary treatment order that had been made by the Mental Health Review Board. The Tribunal’s pre-hearing directions were in the usual form, including that the applicant first serve statements of the evidence of each witness to be called at the hearing. The applicant submitted that involuntary detention was analogous to “exposure to a penalty” or “disciplinary proceedings”, and that the principle in Towie should therefore apply. The Court accepted (at [26]) that “[a]n involuntary treatment order affects interests in a manner that enlivens those aspects of the hearing rule articulated in Towie”. The Court added:

Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. In such cases the ‘usual procedure for merits review’ at VCAT that ‘the applicant goes first’ will not normally be appropriate. Nor will such procedure ordinarily be appropriate at a hearing conducted by the board.

176    In MH6, the applicant had framed the procedural defect as a want of procedural fairness. The Court held, however, that when the whole of the proceedings were considered, the Tribunal had not denied the applicant natural justice; and, in any event, the applicant had waived his rights to insist on compliance with the correct procedure, since his legal representative had agreed to the procedure that was in fact used: 31 VAR 226 at [33], [43], [40] and [53].

177    From the foregoing, it may be concluded that other intermediate appellate courts in addition to the Full Court of this Court have held that the privilege against exposure to penalties is capable of applying in non-judicial proceedings, although the privilege may be abrogated or curtailed by statute. Hence, whether or not the privilege against exposure to penalties was available to Mr Frugtniet in his proceedings before the Tribunal depends on the proper construction of the applicable legislation.

178    In addressing the question of construction, it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right or depart from the general law unless the legislative intention to do so emerges clearly, whether by express words or by necessary implication: see, e.g., Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304; Sorby 152 CLR 281 at 294-295; Pyneboard 152 CLR 328 at 341; Daniels 213 CLR 543 at [11], [43], [88]-[94] and [132]-[134]; X7 248 CLR 92 at [158]. The prevailing authority is that the abrogation or curtailment of the privilege against exposure to penalties must be clear and unmistakable. In X7 at [158] Kiefel J said:

The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.

(Citations omitted.)

In Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [30], Gleeson CJ said:

[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.

(Citation omitted.)

179    The abrogation or curtailment is not only found in express words. The language and character of the statutory provisions and the purpose they are designed to achieve is significant: Sorby 152 CLR 281 at 309-310; and Pyneboard 152 CLR 328 at 341. In the latter place, Mason ACJ, Wilson and Dawson JJ said:

In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings.

180    It has also been said that a privilege may be abrogated or curtailed if the implication is necessary to prevent the statutory provision being frustrated or rendered unworkable: see, e.g., Daniels 213 CLR 543 at [43]; Carmody v MacKellar (1997) 76 FCR 115 at 137. It is a consequence of the principle of legality, however, that “one starts with the presumption that the privilege is not to be affected, rather than looking for an implied qualification of an otherwise freely interpreted statute”: see Griffin v Pantzer 137 FCR 209 at [52].

181    The Tribunal was governed by the AAT Act, although that Act requires consideration of relevant provisions in the Migration Act. The AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment: AAT Act, s 25(1)(a). Section 306 of the Migration Act provides that “[s]ubject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division”. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick, proportionate to the importance and complexity of the matter and that promotes public trust and confidence in the decision-making of the Tribunal: AAT Act, s 2A.

182    The Tribunal’s decision on review must be in writing, affirming, varying or setting aside the decision under review: s 43(1). The Tribunal, if sets aside the decision under review, may make a decision in substitution for the decision set aside, or may remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal: s 43(1)(c). It is well-established that the Tribunal must determine the “correct or preferable” decision on the material before it: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409 at 419 (Bowen CJ and Deane J); see also Esber v Commonwealth [1992] HCA 20; 174 CLR 430 at 440; and Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 425. In this case, in affirming the decision under review, the Tribunal determined in substance that the decision to cancel Mr Frugtniet’s registration was the correct or preferable one on the material before it. Whilst it may be true to say that “proceedings before the AAT are fundamentally different from court proceedings” (Watson v Commissioner of Taxation [1999] FCA 1796; 96 FCR 48 at [34] (Heerey J)), it is also true to say that there is nothing about the task the Tribunal undertakes that is incompatible with the availability of the privilege against exposure to penalties.

183    Further, pursuant to s 43 of the AAT Act, for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred on the person who made the decision under review, in this case the MARA. The powers conferred on the Tribunal by, and exercisable under, s 43 are not exercisable “at large”: see Lees v Comcare [1999] FCA 753; 56 ALD 84 at [39]. Thus, the Tribunal cannot exercise a power “conferred on a decision-maker for some purpose unrelated to the decision under review”: Australian Securities and Investments Commission v Donald [2003] FCAFC 318; 136 FCR 7 at [33]. Relevantly here, the Migration Act confers significant investigatory powers on the MARA, which do not extend to the Tribunal: Shi 235 CLR 286 at [68] (Kirby J) and [147] (Kiefel J). Thus, the question whether or not the privilege against exposure to penalties is abrogated or curtailed under the provisions conferring those investigatory powers on the MARA does not arise in this case, which concerns a proceeding before the Tribunal. There is nothing in the provisions so far mentioned, however, that could be said to manifest any intention to abrogate the privilege against exposure to penalties.

184    It is true, as the MARA submitted, that the procedure applicable in the Tribunal differs in some respects from that of a court. As Mansfield J stated in Brackenreg v Comcare [2010] FCA 724; 187 FCR 209 at [59], citing McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357, “because the Tribunal stands in the shoes of the primary decision-maker, there is no legal onus of proof arising from the fact that it is conducting a review”. This does not mean that there may not be a practical onus: Brackenreg v Comcare 187 FCR 209 at [60]-[63]. Pursuant to s 33(1)(b) of the AAT Act, the review proceeding is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permitted. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: s 33(1)(c). There is, however, nothing in these provisions that expressly or by necessary implication manifests a clear intention to abrogate or curtail the privilege against exposure to penalties.

185     Section 37(1) of the AAT Act is also relevant in this context. This provision requires the person who made the decision the subject of the review application to lodge with the Tribunal “within 28 days after receiving notice of the application (or within such further period as the Tribunal allows)” a copy of: (a) “a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision”; and (b) “every other document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal”. Subject to presently immaterial exceptions, the person must also give a copy of those statements and documents to each other party to the proceeding: s 37(1AE). Section 37 is central to the capacity of the Tribunal to make a decision in the place of the earlier decision-maker, but, once again, it does not manifest a clear intention to abrogate or curtail the privilege against exposure to penalties. Rather, the provision contemplates only that the Tribunal should have all the information in relation to the subject of its review that it is to perform. The same material is to be given to review applicants in order that they can present their case for a different decision against the background of knowledge of the basis for the decision they seek to overturn. It must be borne in mind, however, that, on review, the Tribunal makes a new and separate decision, on the material before it; and this material may differ in crucial respects from the material before the original decision-maker.

186    Other provisions of the AAT Act confer powers on the Tribunal analogous to that of a court. For example, for the purposes of reviewing a decision, the Tribunal may take evidence on oath or affirmation: s 40(1). Moreover, for the purposes of a Tribunal proceeding, the Tribunal may summon a person to appear before it to give evidence, or to produce any document or other thing specified in the summons: s 40A(1). Further, the Tribunal may make a direction requiring any person who is a party to the proceeding to provide further information in relation to the proceeding or requiring any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing: s 33(2A)(a) and (c). The prevailing authorities have regarded provisions such as these as indicative of the availability of the privilege against exposure to penalties in a Tribunal setting: see, e.g., Valantine 166 IR 459 at [74].

187    The conclusion that the privilege against exposure to penalties is available in the Tribunal is reinforced by s 60(3) of the AAT Act, which provides that, subject to the Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection as a witness in proceedings in the High Court: see also Tribunal Case 85 [1987] AATA 202; 18 ATR 3613 at 3616 (Davies J, President).

188    Having regard to the foregoing, there is no proper basis to construe the AAT Act as abrogating or curtailing the privilege against exposure to penalties; and no such legislative intention emerges clearly. Furthermore, the Migration Act provides no such basis. Although the Migration Act specifically provides for the powers of the Tribunal in relation to Part 5-reviewable decisions and Part 7-reviewable decisions (see ss 349 and 415) it makes no similar provision for the review of a decision of the MARA under s 303(1) of Div 3 of Pt 3 of the Migration Act.

189    Mr Frugtniet’s submission, that the Tribunal erred in holding that the privilege against exposure to penalties did not apply to proceedings before it, should be accepted.

190     In view of this, the Tribunal should not have made the directions that it did on 30 July 2015 requiring Mr Frugtniet to provide to the MARA and the Tribunal witness statements from proposed witnesses, documents on which he intended to rely at the hearing and a statement of facts, issues and contentions requiring positive assertions. Mr Frugtniet might have been required to provide a statement of argument that identified in general terms what was in issue on the review but, as the Court of Appeal said in Towie, he should not have been required by direction to provide “written material, which contains a positive assertion or denial of facts or [to make] an election ... as to whether he ... intends to go into evidence or [that] any proposed evidence [he] intends to call … be the subject of a witness statement [to be] produced and served on the other side before the case advanced against the applicant has been completed”: at [9]. Further, Mr Frugtniet should not have been required to “go first” in accordance with the usual practice in Tribunal proceedings. He should have had the opportunity to hear the MARA’s case to its completion before he was required to decide to go into evidence and make positive assertions about his case.

191    In an appeal on a question of law under s 44(1) of the AAT Act, it is not enough for an applicant to show that the Tribunal misstated the law in one respect if that misstatement could not have affected its decision: see Screen Australia v EME Productions No. 1 Pty Ltd [2012] FCAFC 19; 200 FCR 282 at [52] (Keane CJ, Finn and Gilmour JJ); and BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 253-254 (Lockhart and Hill JJ). As, however, the Full Court in Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; 114 FCR 456 at [10] said “a decision of an administrative tribunal will be set aside for error of law if it can be shown that the error could have affected the outcome of the case, that is that a different result might have been reached had no error of law been made” (emphasis added). See also Aala 204 CLR 82 at [4], [104], [122], [131]-[132], [211]; and Stead 161 CLR 141 at 145.

192    Whether or not the Tribunal’s decision should be set aside depends on whether the outcome could have been different if the Tribunal had not made the error of law it did as to the application of the privilege against exposure to penalty. After careful consideration, it seems to me that such possibility exists, notwithstanding factors indicative of a contrary conclusion.

193    These factors include that the s 37 documents given by the MARA to Mr Frugtniet pursuant to s 37(1AE) of the AAT Act set out, in some detail, the basis of the decision under review. In its decision given on 30 July 2015 concerning the privilege (Re Frugtniet and Migration Agents Registration Authority [2015] AATA 554; 67 AAR 92), the Tribunal recorded (at [33]) that, by 30 July 2015:

MARA has lodged the T documents as required by s 37 of the AAT Act. That provision requires it to lodge not only a statement of reasons but a copy of every other document, or part of a document, that is in its possession or under its control and relevant to the Tribunal’s review of the decision. The T documents lodged by MARA contain, excluding attachments, a 25 page statement of reasons together with evidentiary material. That evidentiary material includes Mr Frugtniet’s own statements and the documentary evidence he gave to MARA as well as other documents that MARA has gathered. In gathering that information, MARA has used its powers under s 308 of the Migration Act. It has also advised Mr Frugtniet that it was considering cancellation of his registration and the reasons for its doing so and invited him to make submissions on that matter.

194    As the Tribunal noted (at [34]), the s 37 documents showed Mr Frugtniet the view the MARA had taken of the material in its possession at the time it made its decision and the reasons it had for reaching that decision. The Tribunal further observed:

This does not appear to be a case in which the investigation that MARA has undertaken appears on its face to be cursory or inadequate. That is not to say that there is not more material to be obtained or that its decision is correct. What it is to say is that MARA appears to have investigated the matter as thoroughly as it can using the powers it has under the Migration Act. If there is further relevant material to be found, it is logical to think that Mr Frugtniet is in a better position than MARA to be able to identify it even if it is not in his immediate possession or control.

195    The MARA did not, moreover, call any witnesses at the hearing and apparently provided little additional documentary material to the Tribunal. Reference to the transcript of the hearing, which is included in the Court Book, indicates that this additional material apparently consisted of a personalised application signed by Mr Frugtniet in November 2012 and provided to the MARA, and documents and an email exchange relating to Mr Bastola’s consent to disclose his complaint and the associated documents to Mr Frugtniet.

196    I would not, furthermore, accept Mr Frugtniet’s submission that the directions made by the Tribunal on 30 July 2015 exposed him to “serious disadvantage” for the reasons he advanced. These reasons were: (i) Mr Bastola had been charged with a criminal offence and had sought to implicate Mr Frugtniet; (ii) Mr Bastola had not given permission to have his complaint published since 2011; and (iii) Mr Bastola was not called by the MARA, even though Mr Frugtniet had indicated to the MARA that he required Mr Bastola to be called for the purposes of cross-examination. Mr Bastola’s complaint to the MARA was provided to Mr Frugtniet in the s 37 documents (and also as an attachment to the notice issued to him under s 309(2) of the Migration Act dated 5 September 2014 (the s 309(2) notice). The Tribunal’s reasons at [104] to [109] clearly indicate that all the relevant evidence regarding the creation of the false work reference and its submission to the TRA had been included in the s 37 documents. The Tribunal referred at [104] to Mr Glen Evans’ evidence, and at [105] the evidence of Ms Hilder from Australia Post. Their evidence was included in the s 37 documents and was also attached to the s 309(2) notice. Mr Frugtniet was therefore aware of the details of Mr Bastola’s complaint once given the s 37 documents, although the evidence of Mr Bastola’s consent was not included in the s 37 documents and was provided only at the hearing. Further, for the reasons stated earlier, I reject Mr Frugtniet’s submissions concerning the MARA’s failure to call Mr Bastola as a witness. The fact, if it be that, that Mr Bastola had been charged with a criminal offence and had sought to implicate Mr Frugtniet might be thought relevant to the fact that neither party chose to call him, but that did not compel either party to do so.

197    Notwithstanding the information in the s 37 documents, the s 37 documents could not, however, disclose the details of the case that the MARA was to advance before the Tribunal, including the witnesses it might call and any further documentary evidence it might rely on at the hearing. The subsequent disclosure of matters of this kind was in part to be effected by the Tribunal’s direction to the MARA of 30 July 2015, to provide witness statements from witnesses proposed to be called, documents to be relied on and a statement of facts, issues and contentions to the Tribunal and Mr Frugtniet on a fixed date prior to the hearing. Even then, Mr Frugtniet could not know the whole of the case to be advanced against him in the Tribunal until that case was completed.

198    The fact is that the effect of the Tribunal’s directions of 30 July 2015 was to oblige Mr Frugtniet to decide upon the witnesses he was to call and to provide their statements, as well as any other documentary material on which he intended to rely, or risk the possibility that the Tribunal would not permit him to rely on this evidence and material at the hearing. Further, he was obliged to make these decisions before the MARA had identified its case before the Tribunal, let alone completed it. At the same time, the direction to file a statement of facts, issues and contentions, if complied with, exposed Mr Frugtniet to the need, it would seem, to make positive assertions of fact or denials of fact, with the risk that the failure to comply with this direction would weaken his position before the Tribunal at the hearing. Furthermore, the fact that Mr Frugtniet was obliged to “go first” at the hearing meant that he made his decision to give evidence on oath (and be subject to cross-examination), before the MARA presented its case against him. Since he went first, he had also to make other decisions about the presentation of his case ahead of the MARA. The possibility remains that the MARA’s own forensic decisions were also affected by the order in which the parties presented their cases, the directions to which the parties were subject on 30 July 2015 and what was done or not done by Mr Frugtniet in consequence.

199    In the circumstances, bearing in mind the protection that the privilege against exposure to penalties should properly have given him, without stepping impermissibly into the shoes of the Tribunal, the Court cannot exclude the possibility that the Tribunal review might have had a different outcome had the error of law not been made. Mr Frugtniet was, after all, the only witness before the Tribunal and the Tribunal relied on his evidence in making findings against him. For example, on the basis of the evidence of Mr Frugtniet (with that of Ms Hilder and the ASIC search) the Tribunal found at [105] that “the GPO Box shown in the letter signed by Mr Glen Evans matched with that of a company of which Mr Frugtniet is a director”. This finding supported its conclusion that Mr Frugtniet was a key player in the creation of the false documents provided to the TRA.

200    It is tempting to conjecture that the case that Mr Frugtniet faced, as disclosed in the Tribunal’s reasons, left little room for a different outcome, but that is to view the matter from the wrong perspective. While the possibility of a different outcome remains, the decision as to whether the cancellation of Mr Frugtniet’s registration as a migration agent is the correct or preferable decision is that of the Tribunal and not that of this Court; and it would be wrong to assess the reality of this possibility by reference to findings that have been made in the circumstances in which this review proceeding was conducted, since the denial of the protection the privilege would have afforded was an integral part of the procedures the Tribunal adopted.

201    It is therefore appropriate to set aside the decision of the Tribunal and remit the matter to the Tribunal, differently constituted, for hearing and determination in accordance with these reasons.

Ground 10

202    There was nothing disclosed at the hearing to show that a fair-minded and appropriately informed lay observer might reasonably have apprehended that the Deputy President constituting the Tribunal might not bring an impartial mind to the resolution of the issues before her: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]; ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36]. Mr Frugtniet did not seek to support his submission, in his written submissions in reply, that the Deputy President’s refusal of the stay application in the ASIC matter in some sense entailed an adverse inference about his credibility.

Proposed new ground – estoppel contention

203    At the hearing, Mr Frugtniet sought to contend, for the first time, that the Tribunal and the MARA were estopped from relying on the findings of the Victorian Supreme Court because the MARA had previously considered those findings and had decided not to take disciplinary action against Mr Frugtniet. No issue of estoppel was raised in any ground of Mr Frugtniet’s amended notice of appeal. The MARA opposed the grant of leave, which Mr Frugtniet required under r 33.15 of the Federal Court Rules 2011 (Cth) before the issue could be raised.

204    A party to a proceeding before the Tribunal may only appeal to this Court on a question of law: see AAT Act, s 44(1). Mr Frugtniet did not make any contention of the present kind before the Tribunal. The Tribunal did not, therefore err in law in failing to address it: see Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; 184 FCR 448 at [61]; see also Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [84]-[109].

205    In any event, Mr Frugtniet’s contention was hopeless for a number of other reasons, including that, having regard to the clear statements by the MARA that it reserved the right to rely on such matters again should later complaints or information demonstrate a pattern of behaviour, any contention that the MARA and the Tribunal, on review, were estopped from considering those matters in the exercise of the power conferred by s 303(1) of the Migration Act must fail at the outset for want of a sufficiently clear and unambiguous representation that those matters would not be taken into account in the future: Minister for Immigration Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207; Legione v Hateley [1983] HCA 11; 152 CLR 406 at 435-437.

206    Accordingly, I would refuse Mr Frugtniet leave to raise the contention about estoppel. I have already considered and rejected other contentions made by Mr Frugtniet concerning the findings made by the Supreme Court of Victoria.

Evidence Act submissions

207    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.

208    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.

209    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.

210    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.

211    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].

212    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.

213    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).

214    As the MARA submitted, the Tribunal may use the findings of another tribunal or of a court as the basis for its own findings, according such findings the weight that it considers appropriate in all the circumstances of the case: see, e.g., the reasons for decision of the Tribunal in Re Thorpe and Commissioner of Taxation [2011] AATA 638; 123 ALD 355 at [72].

Disposition

215    For the reasons stated above, Mr Frugniet’s additional submissions are rejected. Mr Frugtniet has not made out grounds 1 to 8 and 10 of his amended notice of appeal. He has, however, made out ground 9 and orders should be made accordingly.

Associate:

Dated:    8 June 2017