AFP18 v Minister for Home Affairs
[2024] FedCFamC2G 466
•23 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AFP18 v Minister for Home Affairs [2024] FedCFamC2G 466
File number(s): MLG 128 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 23 May 2024 Catchwords: MIGRATION LAW – Application for judicial review– Safe Haven Enterprise Visa – where applicant engaged registered migration agent to provide submissions to the Immigration Assessment Authority – where migration agent provided pro forma submissions containing personal information relevant to different person – where Immigration Assessment Authority provided opportunity for revised submissions – where revised submissions contained similar or identical submissions as first submissions – whether it was legally unreasonable for the Authority to rely on the revised submissions – whether it was legally unreasonable for the Authority not to seek or consider seeking new or further information Legislation: Migration Act 1958 (Cth), pt 7AA, sub-div C, ss 473DB, 473DC, 473DD Cases cited: BRK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 303
DBK17 v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 1184
DVV16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 522
FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; 271 CLR 550
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 8 April 2024 Place: Melbourne Counsel for the Applicant: Mr McDonald-Norman Counsel for the First Respondent: Mr Yuile Solicitor for the Applicant: Victoria Legal Aid First Solicitor for the Respondent: Mills Oakley Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
MLG 128 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AFP18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
23 MAY 2024
THE COURT ORDERS THAT:
1.The Amended Application filed on 12 March 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs in an amount to be fixed, if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 12 March 2024, in which the applicant seeks judicial review of a decision of the second respondent dated 13 December 2017. That decision affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise Visa (Visa).
BACKGROUND
The applicant is a citizen of Sri Lanka.
On 7 September 2012 the applicant arrived in Australia by boat as an unauthorised maritime arrival.
On or about 12 August 2013 the applicant attempted to apply for a Protection (Subclass 866) visa. In that application, the applicant attached a Statutory Declaration dated 12 August 2013 which set out the applicant’s protection claims (PV Statement).
On 20 November 2015 the Department of Immigration and Border Protection (Department) notified the applicant by email that his application for a Protection (Subclass 866) visa was invalid. In that same correspondence, the Department invited the applicant to apply for a Temporary Protection Visa or a Safe Haven Enterprise Visa.
On 31 May 2016 the applicant applied for the Visa. The applicant’s claims were set out in a Statutory Declaration attached to his Visa application (SHEV Statement). In the SHEV Statement, the applicant indicated that he continued to rely on the particulars provided in the PV Statement. Relevantly, the applicant’s claims for protection can be summarised as follows:
(1)in 2008, the applicant, his wife and other adult members of his family received compulsory training with the Liberation Tigers of Tamil Eelam (LTTE) over a period of six months, which did not include weapons training;
(2)in February 2009, the applicant’s home was caught in a shelling attack and his daughter was killed and he was injured. The applicant and his family were displaced and had to move around Mullaitivu in Sri Lanka’s Northern Province;
(3)the applicant’s brother was associated with the LTTE. The applicant last saw his brother in 2009, at which time he was driving a truck for the LTTE and delivering food parcels to LTTE fighters;
(4)in May 2009 the applicant and his family entered an army controlled area and were taken to Chetti Kulam refugee camp. While in the camp, the applicant was repeatedly questioned by the Sri Lanka’s Criminal Investigation Department (CID) about possible associations with the LTTE;
(5)in January 2011, the applicant and his family left the camp. After leaving the camp, the applicant was repeatedly taken by the CID and assaulted 4-5 times;
(6)the applicant would often take his son for medical treatment in Colombo, where he would be subjected to discrimination and harassment by the local Sinhalese population;
(7)he fears he will be harassed, detained and harmed if he returns to Sri Lanka because of his suspected LTTE associations and because he departed the country illegally; and
(8)he does not believe the authorities in Sri Lanka will protect him because they are in all parts of the country and are the ones persecuting him.
On 7 March 2017 the Delegate refused to grant the applicant the Visa.
On 10 March 2017, the Delegate’s decision was referred to the Immigration Assessment Authority (Authority) for review.
The migration agent’s submissions
On 20 March 2017, the applicant’s newly appointed migration agent, Ms Rajasekaram, emailed the Authority and provided a submission and country information on behalf of the applicant (First IAA Submission). The First IAA Submission was provided to the Authority following receipt of the Authority’s “Practice Direction for Applicant’s, Representatives and Authorised Recipients”. The First IAA Submission was some 5 pages in length. Some of the applicant’s personal circumstances were set out at the bottom of page 1 of the First IAA Submission under the heading “Submissions on behalf of the applicant”. Thereafter followed substantially generic country information and references to the law. The First IAA Submission also contained the following new claims which were not part of the applicant’s case:
(1)the applicant ‘was reading a Human Rights degree at the University of Colombo at the time of his departure to Australia in 2013’ (at paragraph [36]);
(2)the applicant ‘has been persecuted by way of sexual abuse by the SLA’ (at paragraph [36]);
(3)the applicant’s brother ‘who was arrested alongside him has successfully sought asylum in Canada’ (at paragraph [36]);
(4)the applicant would face ‘denial of capacity to earn a livelihood as a police officer of Sri Lanka’ (at paragraph [36](iii)) and that the ‘latest UNHCR guidelines specially lists media personalities and ex-police men as “at risk profiles” (the applicant belongs to both groups) (at paragraph [38]); and
(5)the decision maker did not give consideration to the fact that the applicant is a ‘young Tamil male’ (at paragraph [39]). At the time of the Delegate’s decision, the applicant was 47 years old.
On 27 March 2017, the Authority wrote to Ms Rajasekaram and stated that the First IAA Submission did not comply with the relevant Practice Direction for the Authority (March 2017 Letter). After referring to the length of submissions permitted under the Practice Direction, the circumstances under which the Authority can consider new information pursuant to s 473DD of the Migration Act 1958 (Cth) (Act) and paragraph 26 of the Practice Direction in relation to reports and media articles and paragraph 21 of the Practice Direction in relation to formatting, the Authority said:
On 20 March 2017 you provided the IAA with correspondence on behalf of [the applicant] that does not appear to comply with the Practice Direction, specifically:
•You have not provided an explanation as to how any new information meets the requirements of s.473DD.
•The submission is very similar, in some cases identical, to the submissions you have provided to the IAA on behalf of a number of your other clients who have been referred to IAA. You have not identified how the material you have provided, particularly any new information, actually relates to [the applicant] and his specific circumstances.
•Some of the country information and media articles you referred to in your submission do not appear to have been before the Department and have not been provided to the IAA either as extract(s) or in full.
•Your submission does not comply with the formatting requirements at paragraph 21 of Practice Direction.
For these reasons I am returning your correspondence to allow you to provide a revised written submission which complies with the Practice Direction. I will allow you until 4 April 2017 to provide a revised submission.
On 29 March 2017, Ms Rajasekaram emailed the Authority and provided a revised submission on behalf of the applicant (Second IAA Submission). The Second IAA Submission was 5 and ¼ pages long and contained 34 paragraphs. It contained a new expanded first paragraph which was specific to the applicant’s circumstances in that it referenced the applicant’s claims to have helped to bury dead bodies for the LTTE, to have had a brother involved with the LTTE, to have been beaten by the Sri Lankan authorities and to have been questioned about LTTE weapons. However, the remaining content of the Second IAA Submission was very similar to the content contained within the First IAA Submission and contained substantially generic country information and references to the law. Some of the content of the Second IAA Submission was identical to the First IAA Submission. The Second IAA Submission also contained the following claims which were not relevant to the applicant’s case:
(1)‘young Tamil males are a target and at high profile risk according to UNHCR guidelines’ (at paragraph [10]). As noted above, the applicant was 47 years old at the time of the Delegate’s decision;
(2)‘the decision maker has failed to consider the personal circumstances of the applicant while reaching a decision on his application, him not being able to re-locate within the state as the agent of feared persecution is the State’ (at paragraph [11]);
(3)the applicant ‘was reading a Human Rights degree at the University of Colombo at the time of his departure to Australia in 2013’ (at paragraph [32]);
(4)the applicant ‘has been persecuted by way of sexual abuse by the SLA’ (at paragraph [32]);
(5)the applicant’s brother ‘who was arrested along side him has successfully sought asylum in Canada’ (at paragraph [32]);
On 13 December 2017, the Authority affirmed the Delegate’s decision not to grant the applicant the Visa.
IMMIGRATION ASSESSMENT AUTHORITY DECISION
The Authority issued its statement of decision and reasons on 13 December 2017 (Authority Decision).
At paragraphs [7]–[25] of the Authority Decision, the Authority set out its factual findings regarding the applicant.
The Authority considered the applicant’s claims contained within the Second IAA Submission and, relevantly, noted the following at paragraph [5] of the Authority Decision:
In the revised submission there are references to factual circumstances – that the applicant was sexually abused and arrested alongside his brother who successfully sought asylum in Canada – that were not previously raised as part of the applicant’s protection claims and appear to relate to matters from before the date of the delegate’s decision. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known it may have affected the consideration of the applicant’s claims. At the SHEV interview, the delegate explained to the applicant it was important that he provide the Department with his full protection claims and if the application was refused he may not have another opportunity to do so. At the SHEV interview the delegate and the applicant, among other things, discussed his brother and the applicant made no mention of ever being arrested with his brother, said that he last saw and had contact with his brother in May 2009 and he did not know whether his brother was taken or killed. At the end of the SHEV interview the delegate confirmed with the applicant that he had provided all his protection claims and said if any further information was received before a decision was made it would be considered. The applicant has not satisfied me that this new information was not and could not have been provided to the delegate or that it may be regarded as credible personal information that was not known, and had it been known it may have affected the consideration of the applicant’s claims. I am not satisfied that there are exceptional circumstances to justify considering this new information.
The Authority therefore proceeded on the basis that the information in the Second IAA Submission was part of the applicant’s case and that information was not credible and could not be considered as new information.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Authority Decision on 18 January 2018.
The applicant filed an Amended Application on 12 March 2024.
The Amended Application contains one ground for judicial review as follows:
1.The Authority fell into jurisdictional error by unreasonably failing to exercise, or failing to consider the exercise of, its powers to seek new or further information from the Applicant.
Particulars
a.On 20 March 2017, the Applicant’s representative, Sowmiya Rajasekaram, provided a purported submission and country information to the Authority (First IAA Submission): CB 251-302. The First IAA Submission contained claims and factual assertions which were not relevant to the Applicant’s circumstances, and did not explain why these claims were relevant to the Applicant’s case.
b.On 27 March 2017, the Authority wrote to Ms Rajasekaram stating that the First Submission did not comply with the relevant Practice Direction: CB 303-304.
c.On 29 March 2017, Ms Rajasekaram provided a second purported submission and country information to the Authority (Second IAA Submission): CB 307-313. The Second IAA Submission also contained claims and factual assertions which were not relevant to the Applicant’s circumstances, and did not explain why these claims were relevant to the Applicant’s case.
d.In its decision, the Authority did not treat the claims and factual assertions not relevant to the Applicant’s circumstances as having been included in error. Instead, it treated these claims as though they related to the Applicant: CB 320 [5].
e.In the premises, the Authority unreasonably failed to exercise, or failed to consider exercising:
i.its power to seek new information from the Applicant pursuant to s 473DC of the Migration Act 1958 (Cth); and/or
ii.its powers to seek further information generally, as part of its general powers in the conduct of the review: see Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; [2020] HCA 46 at [28]-[29], [31] and [34].
f.If the Authority had exercised, or considered exercising, these powers, there is a realistic possibility that the outcome of the Authority’s review could have been different.
g.In the premises, the Authority’s decision was affected by jurisdictional error.
CONSIDERATION
Applicant’s submissions
The applicant submits that it was legally unreasonable for the Authority to rely on the Second IAA Submission and not to seek or consider seeking new or further information from the applicant. The applicant submits that although there were changes from the First IAA Submission, the Second IAA Submission still contained numerous claims that had nothing to do with the applicant. The applicant submits that it should have been obvious to the Authority that the Second IAA Submission, like the First IAA Submission was not substantially directed to the applicant’s claims. Further, the opportunity to provide submissions to the Authority is significant as it is the only opportunity for the applicant to provide their own new information to the Authority or an explanation as to why the Delegate was wrong.
The applicant submits that the Authority’s failure to seek or consider seeking new or further information from the applicant can be characterised either as an unreasonable failure to exercise its power to seek new information under s 473DC of the Act or a failure to exercise its general powers in the conduct of a review.
Minister’s submissions
The Minister submits that the Authority’s actions, including identifying to Ms Rajasekaram the issues in the First IAA Submission and providing a further opportunity to provide new submissions, was more than sufficient to avoid unreasonableness. The Minister submits that the Authority took precisely the steps that the High Court indicated should have been taken in CHK16’s case: Minister for Home Affairs v DUA16 (DUA16); Minister for Home Affairs v CHK16 (CHK16) [2020] HCA 46; 271 CLR 550.
Was the failure of the Authority to seek further or new information legally unreasonable?
In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 434 the High Court said:
The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
Whether the Authority’s failure to seek further or new information or consider doing so must be considered in the context of the statutory scheme, by reference to previous authorities, and by reference to what the Authority actually did.
Assessing reasonableness is a fact specific inquiry. As the High Court said in DUA16 at paragraph [26] “whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of statutory power: the conclusion is drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.”
The threshold for legal unreasonableness is usually high and is not to be assessed through the lens of procedural fairness to the applicant: DUA16 at [26].
The statutory scheme- Part 7AA, Subdivision C of the Act
The statutory scheme established in Part 7AA of the Act was recently summarised by Judge Champion in FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174 at [24] (FJH17). I respectfully adopt that summary as follows:
The statutory scheme established in Part 7AA of the Act provides a default position that the Authority will review decisions “on the papers”: see heading to s. 473DB of the Act. Subdivision C, titled “Additional information”, grants the Authority a discretion as to “Getting new information” in accordance with s. 473DC of the Act. “New information” is defined by reference to “any documents or information”: s. 473DC(1)(a); s. 473BB of the Act. The Authority has no duty to get new information. Section 473DC(2) of the Act provides that the “Authority does not have a duty to get, request or accept, any new information”. Section 473DD(a) of the Act restricts the circumstances in which “new information” may be considered. It relevantly provides that the Authority “must not consider any new information unless the Authority is satisfied that there are exceptional circumstances to justify considering the new information”. Under s. 473FB, the President had issued a practice direction which (among other matters) set out procedures to be followed by persons giving new information to the Authority in writing or at interview: CB210 – CB217. It prescribed that any submission “should identify and address the issues you want us to consider in our review” and should not be longer than 5 pages: at [21] (CB212). It provided:
20.For the purposes of the review, you may provide a written submission on the following:
•why you disagree with the decision of the Department
•any claim or matter that you presented to the Department that was overlooked.”
Previous High Court authorities
In DUA16 and CHK16 the High Court considered whether it was legally unreasonable for the Authority not to seek further or new information after receiving pro forma submissions from Ms Rajasekaram on behalf of two visa applicants. Ms Rajasekaram used substantially the same submissions in around 40 different cases, including in the cases of DUA16 and CHK16. Submissions by Ms Rajasekaram to the Authority have been the subject of consideration in a number of other cases since DUA16 and CHK16: BRK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 303; DVV16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 522; DBK17 v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 1184; and, FJH17. While the authorities relating to Ms Rajasekaram’s submissions in relation to other applicants provide guidance, none involve circumstances where the Authority has identified that the submissions provided are very similar, and in some cases identical, to submissions Ms Rajasekaram has provided to the Authority in respect of other applicants and allowed revised submissions to be provided.
CHK16
At paragraph [7] the High Court summarised the submissions provided to the Authority by Ms Rajasekaram on behalf of CHK16 as follows:
The submissions were slightly more than four pages. They bore the applicant’s name and said that they were the product of his instructions. But the entirety of the personal detail in the submissions concerned a different person.
The High Court concluded at paragraph [28] that the “circumstances of CHK16’s case are extreme.” Further, “it was apparent that the submissions provided by the agent concerned a different person and that none of personal information related to CHK16.” The High Court found at paragraph [28] that a request from the Authority for the correct submissions and CHK16’s correct personal information would have been “a very simple matter” and that the failure of Authority to request the correct submissions pursuant to s 473DC was legally unreasonable: CHK16 at [29]
DUA16
In DUA16, “the agent prepared a four-page submission in support of DUA16’s application by making amendments to template documents” at [11]. The High Court noted at paragraph [12] that the submissions referred to some of DUA16’s personal circumstances and accurate submissions in relation to DUA16’s fear of persecution. However, the High Court also noted that:
“…two paragraphs of the submissions contained apparently erroneous material. One paragraph said that applicant had been detained and he has been persecuted by way of sexual abuse by the SLA. His brother who was arrested along side him has successfully sought asylum in Canada. Towards the conclusion of the submission, a second paragraph, which was identical to a paragraph in the submissions for CHK16, is that “[t]he latest UNHCR guidelines specifically lists media personalities and ex-police men as “at risk profiles” (the applicant belongs to both groups).”
It is apparent that similar erroneous material has been included in both the First IAA Submission and the Second IAA Submission.
At paragraph [34] the High Court found that “DUA16’s case is different.” and said:
…The conclusion that the Authority reasonably drew from the submissions with which it was presented, and by having regard to the review material, was that a small amount of the information had been included by mistake. The Authority disregarded these errors and, moreover, pointed out that the requirements in s 473DD of the Migration Act for consideration of new information had not been met. The statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions. It was reasonable for the Authority to disregard that information and to explain, in the alternative, why the information could not be considered even if it had not been included by mistake.
AFP18’s case
For the following reasons I do not consider that the Authority’s failure to make further inquiries following receipt of the Second IAA Submission was legally unreasonable.
Upon receipt of the First IAA Submission the Authority took precisely the step that the High Court indicated should have been taken in CHK16. It wrote to Ms Rajasekaram, returned the First IAA Submission and provided a further period of time for revised submissions to be provided. That invitation was accepted and the Second IAA Submission was provided.
In the March 2017 Letter, the Authority identified with a not inconsiderable degree of specificity its concerns with the First IAA Submission and the requirements of s 473DD of the Act with regard to the receipt of new information. As set out above, the Authority identified that the First IAA Submission, amongst other things, did not provide an explanation as to how any new information met the requirements of s 473DD or how that new information related specifically to the applicant and that the submission contained submissions that were very similar, in some cases identical, to submissions provided to the Authority by Ms Rajasekaram on behalf of other applicants.
The Second IAA Submission needs to be read as a whole. Although the Second IAA Submission continued to contain certain erroneous information, the content of the Second IAA Submission received in response to the Authority’s correspondence was not the same as the First IAA Submission, contained substantial, specific and accurate information as to the applicant, was not in the same form as the First IAA Submission and contained country and legal information capable of application to the applicant’s circumstances. The applicant concedes that the Second IAA Submission and the First IAA Submission were different and concedes that the country or legal information was capable of application to the applicant. In circumstances where:
(a)the Authority has specifically identified its concerns, in particular in relation to new information and that the submission is very similar, and in some cases identical to, submissions provided to the Authority by Ms Rajasekaram in relation to other applicants;
(b)in response to those concerns a revised, different submission is provided which contains substantial personal information specific to the applicant and other varied information;
(c)the country information and law, which comprise the major part of the Second IAA Submission, whilst generic, is capable of application to the applicant;
(d)the review is undertaken pursuant to Part 7AA, Subdivision C of the Act and is therefore, prima facie, to be undertaken “on the papers”: s 473DB of the Act;
(e)new information will not be considered absent exceptional circumstances; s 473DD(a) of the Act ; and
(f)the Authority has no duty to get new information: s 473DC(2) of the Act, or advise applicants of their opportunity to present new information, even if submissions are hopeless or contain error about facts or law: DUA16 at [27],
I consider that the Authority was entitled to treat the erroneous information as new information and to explain why it could not be considered pursuant to s473DD of the Act. I do not consider such a course, in all the circumstances, to be legally unreasonable. As set out above, the threshold for legal unreasonableness is usually high and is not to be assessed through the lens of procedural fairness to the applicant.
For these same reasons I reject the applicant’s submission that:
(a)because the Authority was aware that the First IAA Submission was very similar, in some cases, identical to submission provided by Ms Rajasekaram on behalf of other applicants and that erroneous material continued to be included in the Second IAA Submission, it was unreasonable for the Authority not to seek further information; and
(b)to find otherwise fetters the nature of the Authority’s task and that the nature of that task remained the same following the receipt of Second IAA Submission.
Further, although every case must be determined on its own facts, there is a close resemblance between the circumstances of the applicant in relation to the Second IAA Submission and the circumstances of DUA16. In particular I note:
(a)the Second IAA Submission contained substantial accurate information as to the applicant. As such, the Authority had significant personal information as to the application for the purposes of its review;
(b)the erroneous information included in the Second IAA Submission was included in paragraphs [10], [11] and [32]. The erroneous information at paragraph [32] has a significant similarity to the erroneous information contained in the submissions in DUA16’s case. Paragraph [32] of the Second IAA Submission referred to “sexual abuse by the SLA” and a “brother who was arrested along side him [and] has successfully sought asylum in Canada.” as was the case in DUA16. Paragraph [32] also incorrectly provides that the applicant “was reading for a Human Rights degree at the University of Colombo at the time of his departure to Australia in 2013.” The erroneous material at paragraph [10] and [11] of the Second IAA Submission is set out above and in the form of submissions which are not relevant to the applicant’s case, rather than incorrect personal information. Accordingly, erroneous personal information is included in one paragraph of the Second IAA Submission and inapplicable submissions are included in two paragraphs. In DUA16 the High Court at paragraph [12] noted that inaccurate references were included in two paragraphs of the submissions. The High Court at paragraph [34] categorised this as “a small amount” of information and said that “the statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions.” I consider that in context of a 32 paragraph submission the erroneous material included in the Second IAA Submission is also properly characterised as a small amount of information and the reasoning of the High Court set out above to be equally applicable here.
Authority on notice
The applicant further submitted that it was legally unreasonable for the Authority not to make further inquiries following receipt of the Second IAA Submission because it was “on notice” that the submissions were not submissions of the applicant. The applicant submits this is so because the reviewer knew that the First IAA Submission had been returned to Ms Rajasekaram and that the March 2017 Letter provided that those submissions were very similar to, and some respects, identical to previous submissions by Ms Rajasekaram in respect of other applicants and it submits that the Second IAA Submission was substantially similar to the First IAA Submission. The applicant submits that this is the key point of distinction between this case and other cases where personal information has been included in submissions and the failure of the Authority to make further inquiries has been held not to be legally unreasonable. Further, the applicant submits that the Authority had received and read substantially the same submissions on a previous review.
On 20 September 2017 the same reviewer had decided another matter in which Ms Rajasekaram’s had made submissions which were ostensibly identical to those in the First IAA Submission on behalf of another applicant (September Decision). Evidence that the submissions in the September Decision were ostensibly identical to those in the First IAA Submission was before the Court. The evidence before the Court is also that the reviewer determined the erroneous material in the September Decision to be new information and determined that there were no exceptional circumstances to justify its consideration.
I reject that the reviewer was “on notice” as contended for by the applicant. Firstly, while I consider it can be inferred that the reviewer was aware of the March 2017 Letter and therefore knew that the First IAA Submission had been returned to Ms Rajasekaram and the reasons for that as set out in the March 2017 Letter, there is no evidence that the reviewer solicited the March 2017 Letter (and indeed the correspondence before the Court suggests otherwise), read the First IAA Submission or was aware of the specific submissions said to be the same or substantially similar to other submissions made by Ms Rajasekaram in respect of other clients contained in the First IAA Submission. Therefore there is no evidence that the reviewer was aware of or had knowledge of the submissions in the Second IAA Submission which were the same as those in the First IAA Submission nor do I consider that I am able to draw such an inference on the basis of the material before the Court. Secondly, as conceded by the applicant, the Second IAA Submission is different from the First IAA Submission, contains specific accurate personal information about the applicant and although a large proportion of the Second IAA Submission is comprised of generic country information and references to the law, that information (again as conceded by the applicant) is capable of application to the applicant. Thirdly, the September Decision was made approximately 3 months before the reviewer delivered his decision in this matter. There is therefore a not insubstantial period of time between the two decisions. Fourthly, there is no evidence of the workload of the reviewer or the Authority more generally and whether this was likely to affect whether the reviewer would have recalled the submissions in the September Decision. I note that the applicant conceded in oral submission that asserted prior knowledge from the September Decision only “weakly strengthened” their submissions.
DISPOSITION
Accordingly, for all the reasons set out above, I do not consider that in all the circumstances the failure by the Authority to make further inquiries following receipt of the Second IAA Submission was legally unreasonable.
It follows that there is no error on behalf of the Tribunal.
The Amended Application must therefore be dismissed.
The Minister seeks the applicant pay their costs. I shall order that the applicant pay the Minster’s costs in an amount to be fixed if not agreed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 May 2024
1
7
1