BRK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 303
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 303
File number(s): MLG 819 of 2017 Judgment of: JUDGE EGAN Date of judgment: 28 April 2022 Catchwords: MIGRATION – where submissions made to the Immigration Assessment Authority on behalf of the applicant concerning personal information were made in error or by mistake in three of four respects – where applicant deposed in an affidavit, without objection, that had the Authority sought information from him as to the accuracy of such submissions, he would have advised the Authority that he was relying upon one of the four new claims – whether the Authority, acting reasonably, ought to have exercised power under s. 473DC(3) of the Migration Act to get new information from the applicant’s representatives as to whether the submissions were accurate or not, and if not, to what extent they were inaccurate – Authority acted unreasonably – jurisdictional error established – application for review granted. Legislation: Migration Act 1958 (Cth) ss. 473CB, 5H(1), 36(2)(a), 36(2)(aa), 473DC and 473DD. Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Minister for Home Affairs v CHK16 [2020] HCA 46
Minister for Home Affairs v DUA16 [2020] HCA 46
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 7 April 2022 Date of hearing: 7 April 2022 Place: Sydney Counsel for the Applicant: Mr Solomon Bridge Solicitor for the Applicant: Carina Ford Lawyers Counsel for the First Respondent: Mr G Hill Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs Table of Corrections 12 July 2023 Certification amended to correct the date of certification. ORDERS
MLG 819 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRK17
ApplicantAND: MINISTER FOR IMMIGRATION
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
28 April 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Amended Application for Review filed on 21 March 2019 be granted.
3.The decision of the Immigration Assessment Authority made on 27 March 2017 be quashed.
4.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
5.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 2 March 2020.
6.The First Respondent pay the Applicants costs of and incidental to the Amended Application for Review, fixed in the amount $7,853.00.
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 EGAN
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia on 19 October 2012 as an unauthorised maritime arrival.
On 18 April 2016, the applicant made application for a Class XE (Subclass 790) Safe Haven Enterprise Visa (SHEV).
A Delegate of the Minister refused to grant the visa application on 22 September 2016. The Delegate considered that the applicant did not face a real chance of serious harm, or a real risk of significant harm, if he was returned to Sri Lanka. The matter was referred to the Immigration Assessment Authority (the Authority) for review.
At [3] of its reasons, the Authority recorded that it had had regard to material referred to it by the Secretary to the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).
At [40] of its reasons, the Authority concluded that the applicant did not meet the requirements of s. 5H(1) of the Act for him to be recognised a refugee, and that accordingly, the applicant did not meet the applicable criteria for protection as set out in s. 36(2)(a) of the Act.
At [49] of its reasons, the Authority concluded that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not satisfy the applicable criteria for complimentary protection as set out in s. 36(2)(aa) of the Act.
Grounds of Review
On 21 April 2017, the applicant filed an Originating Application for Review of the decision of the Authority.
On 21 March 2019, the applicant’s lawyers filed an Amended Application for Review, the Grounds of which relied upon at the hearing of the matter being as follows:
“1. The Second Respondent failed to accord the applicant procedural fairness or acted unreasonably in failing to exercise its discretion to invite the Applicant to comment on information.
Particulars
a. In considering the submissions advanced by the Applicant's representative, the Second Respondent noted that new claims appeared in the "the new claims significantly differ from others put forward by the applicant in his SHEV application … it is difficult to relate these new claims to the Applicant and I strongly suspect these claims relate to another person."
b. The Second Respondent was on notice that the applicant had the same representative at the primary stage before the First Respondent and the review stage before the Second Respondent.
c. The new claims raised in the submission on behalf of the Applicant to the Second Respondent were significant and may have had a substantial impact on the Applicant’s ability to meet the requirements for the grant of his visa.
d. In this case the Second Respondent seems to have found the Applicant’s claims (made in his initial visa application) to be generally credible, accepting certain elements of the Applicant’s claims.
e. In this context, the Second Respondent acted unreasonably by failing to seek further information pursuant to s.473DC of the Migration Act 1958 regarding the claims and whether they were mistakenly included by the representative, or not raised earlier by the Applicant for a particular reason. It was unreasonable of the Second Respondent to fail to exercise its discretion to obtain further information in those circumstances, particularly given the Second Respondent's ultimate conclusion that the claims may have related to a different person altogether.
1A.The Second Respondent committed jurisdictional error by asking a wrong question or addressing itself to a wrong issue, namely in its approach to whether the new claims raised by the Applicant constituted credible personal information within the meaning of s 473DD(b)(ii) of the Migration Act 1958 (Cth).
2.Further and in the alternative, the Second Respondent failed to make inquiries about critical facts which could have been ascertained.
Particulars
a. See the Applicant’s submissions dated 21 March 2019.”
Ground 1 of the Amended Application for Review was a claim that the Authority acted unreasonably by failing to seek further information pursuant to the provisions of s. 473DC of the Act. It was submitted that new claims raised in a submission made to the Authority on behalf of the applicant dated 5 October 2016 ought to have resulted in the Authority getting new information. [1]
[1] Exhibit 1 - Court Book (CB) pp 271 – 277 (submissions).
It was submitted on behalf of the applicant that the new claims “ … were significant and may have had a substantial impact on the applicant’s ability to meet the requirements for the grant of his visa.” It was submitted that the Authority ought to have sought further information from the applicant as to whether or not the new claims were mistakenly included by the representative, or whether the claims had not been raised earlier by the applicant for a particular reason. Sections 473DC and 473DD of the Act respectively provided as follows:
“s. 473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
“s. 473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
The new claims were conceded by the applicant as having been fairly summarised at [5] of the reasons of the Authority, [2] and were as follows:
“[5]The applicant’s representative has referred to numerous sources of country information that was not before the delegate. She also refers to the following claims that were not previously before the delegate:
•The applicant was reading a Human Rights degree at the University of Colombo in 2013 and is opposed to the Sri Lankan government and its lack of human rights practices
•The applicant was sexually abused by the Sri Lankan Army
•The applicant and his brother were arrested together and the applicant’s brother has since sought asylum in Canada
•The applicant is at risk of harm due to his profile of being a media personality and an ex police officer.”
[2] See paragraph 8 of the Applicant’s Submissions filed on 21 March 2019
In an affidavit of the applicant filed on 21 March 2019 – there having been no objection by Counsel for the first respondent to reliance being placed upon same by the applicant at the hearing of the matter – the applicant affirmed that he did maintain that he had been “ … sexually abused by the Sri Lankan Army when detained by them.” The applicant relevantly said as follows:
“[2]In the Immigration Assessment Authority’s decision at paragraph 5, it says my previous representative made four claims to the Authority that had not been made to the Department.
[3]If the Authority had contacted me about these claims, I would have confirmed that one of those claims related to me and that I intended to make the claim to the IAA that I had been sexually abused by the Sri Lankan Army while detained by them.
[4]If my previous representative had been contacted by the Authority and had then sought my instructions, I would have said the same to the representative and asked her to pass that on to the Authority.”
By inference, the other three claims made in the submissions to the Authority must be taken to have been so made by the applicant’s representative in error, or by mistake.
The submissions provided to the Authority relating to sexual assault, upon which the applicant relied, were as follows:
“ The applicant is perceived to belong to the social group the LTTE and is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA.” [3] and
”The decision maker should have given adequate consideration to the facts and the information provided by the applicant in support of his claim for protection visa. The decision maker did not give consideration to the fact that the applicant is a young Tamil Male. The applicant’s fear as displayed by him comes in the form of nightmares, inability to sleep, depression, inability to eat, in more Post Traumatic Stress Disorder type of symptoms, as detailed in the protection visa interview on 18 February 2016 where he describes how he was sexually abused and is fearful it will happen again if he were to return to Sri Lanka as several of the perpetrators will still be part of the Sri Lankan Army. The applicant vividly narrates the circumstances that triggered his departure from Sri Lanka in order to protect his life.” [4]
[3] CB p. 276
[4] CB p. 277
At [8] of its reasons, the Authority dealt with the new claims as follows:
“[8]The new claims significantly differ from those put forward by the applicant in his SHEV application and appear to have no bearing on those claims presented to the delegate in the SHEV interview. Given the applicant’s account of his circumstances prior to leaving Sri Lanka in 2012, it is difficult to relate these new claims to the applicant and I strongly suspect these claims relate to another person. The applicant has never claimed to have attended university, that he was involved in the media or was a police officer, or that he has a brother in Canada, or that he was sexually abused. In any case, the new claims relate to events that pre-date the delegate’s decision and the applicant’s representative has not provided any reason as to why this information was not provided to the delegate before the decision was made. I also note the applicant was legally represented both in respect of his SHEV application and at the SHEV interview and these matters have not previously been mentioned. In the circumstances, I am not satisfied these new claims represent credible personal information or could not have been provided before the delegate’s decision was made.”
The applicant particularly took issue with the finding of the Authority that the applicant had never claimed that he had been sexually assaulted by members of the Sri Lankan Army. There was substance to such grievance. Included in the documentation submitted by the applicant in support of the SHEV application was a statutory declaration. At paragraphs 4 and 10 of that statutory declaration dated 19 February 2016, [5] the applicant declared as follows:
“[4]I am a 26, year old male and single. I became a person that the Army kept targeting, harassing, questioning, beating. I could not leave in peace in my home country. I left Sri Lanka for the protection of my life. In 2008, UNHCR and IOM attended meetings in Jaffna, Sri Lanka. In 2008, there were meetings with foreign countries held in relation to the human rights atrocities against Tamils in Sri Lanka. These meetings heightened the animosity between the Army and us Tamil civilians. The Army arrested me and brutally assaulted me in 2009. 300 metres from my house, I presume the Army planted the weapons and then arrested me saying that I planted the weapons that they had found near my house. I had no connection with the weapons or LTTE but the army assumed I had planted the weapons and that I had connection with the LTTE. They did not accept my denials. They stripped me naked and beat me. My parents after paying a bribe came and collected me from the Army Camp. Finally, I was released. After I was released I had to go every week and sign at the Army Camp. Army's harassment, assault and questioning affected my daily life I could not live in peace. 4 persons, Singhalese came and assaulted me again. They were associated with the Army group.”
…
[10]I fear that I will be harmed, sexually abused, beaten, kidnapped in a white van, tortured, killed, detained, stripped naked and beaten with Army stomping on my private parts, forced to perform sexual acts on the army, asked to clean their toilets, beaten up while my face is on the toilet bowl, by the Sri Lankan Authorities, including the Sri Lankan Army.”
[5] CB pp 100 – 103
Having erroneously found that the applicant had not made claims about his having been sexually abused by the SLA at [8] of its reasons, the Authority nonetheless, at [13] of its reasons, inexplicably referred to the applicant as having made such very claim in his SHEV statement dated 19 February 2016. The Authority found as follows:
“[13]In the SHEV statement, dated 19 February 2016, the applicant claimed that in 2009 he was arrested and assaulted by SLA personnel. He stated that the SLA had found weapons 300 metres from his house and suspected him of involvement with the LTTE. The applicant was stripped naked and beaten. His parents secured his release through the payment of a bribe. Following this, the applicant was required to sign weekly at a SLA camp.”
At the least, the Court finds that the Authority’s reasons on point were contradictory. The latter brings into focus the nature and significance, if any, of the inclusion in the 5 October 2016 submissions to the Authority of claims which were largely, but not entirely, made in error or by mistake.
In Minister for Home Affairs v DUA16 and Minister for Home Affairs v CHK16 [2020] HCA 46, the High Court was there firstly dealing with submissions made to the Authority in respect of CHK16 where the entirety of the personal detail in the submissions concerned a different person, but secondly where only a small amount of the information in the submissions made to the Authority in respect of DUA16 had been made in error. The High Court found that the failure on the part of the Authority to get new information under s. 473DC was unreasonable in the case of CHK16, but excusable in the case of DUA16. At [23] – [34] inclusive of its reasons, the High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) said as follows:
“[23]The Practice Direction issued by the President of the Authority in the exercise of the power in s 473FB permitted written submissions and new information and explanations to be provided to the Authority on matters including: "why you disagree with the decision of the Department". In the Federal Circuit Court, Judge Riethmuller found that CHK16 wished to put his claim for protection on the basis of his own circumstances and that DUA16 would have sought to provide more information if his agent had told him that he had the opportunity to do so.
[24]In the Full Court of the Federal Court, each of CHK16 and DUA16 filed a notice of contention. One ground of their notices of contention, which it had not been necessary for Judge Riethmuller to consider, was that the Authority erred by failing to consider the exercise of its discretion in s 473DC of the Migration Act to obtain new information. This contention was dismissed. Griffiths J, with whom Mortimer and Wheelahan JJ agreed on this point, dismissed the contention because submissions are not "new information". In this Court, each of CHK16 and DUA16 relied upon a similar notice of contention, asserting the unreasonableness of the Authority making a decision on the review without first contacting CHK16 or DUA16 to seek clarification or to get new information under s 473DC.
[25]In this Court, the Minister correctly accepted that submissions that were made upon instructions from CHK16 or DUA16 might have contained new information. "New information" refers to documents or information of an evidentiary nature that were not before the Minister at the time of making the referred decision and which the Authority considers may be relevant. In the section of the Authority's Practice Direction concerned with applicants seeking to provide submissions, it was expressly contemplated that submissions might contain new information, with the Authority summarising the requirements in s 473DD before new information could be considered. Since new information can be contained, and might be expected to be contained, in submissions, the Authority's power in s 473DC to get new information plainly extended to getting submissions containing that new information. Therefore, Griffiths J erred by dismissing the notices of contention on the ground that submissions are not new information. It is necessary to consider whether, in the particular circumstances of each of CHK16 and DUA16, the failure of the Authority to exercise the power in s 473DC to get new information by inviting written submissions was legally unreasonable.
[26]A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
[27]As Griffiths J correctly held in the Full Court, there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law. However, the power in s 473DC is still subject to the usual implication that it must be exercised within the bounds of legal reasonableness. Hence, this Court has held that a decision can be invalid if it is made in circumstances which exceed the high threshold of legal unreasonableness for the Authority's failure to exercise the power in s 473DC to get new information.
[28]The circumstances of CHK16's case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK16. As the Authority was aware, this was the only opportunity that CHK16 would have to provide his own new information, which could be of considerable importance. On CHK16's case before the delegate, the consequences of refusal of his protection visa could place his life at risk. A request from the Authority for the correct submissions and CHK16's correct personal information would have been a very simple matter. The Authority had, itself, indicated in its Practice Direction that submissions that were too long would be returned with an opportunity given to provide new submissions. These circumstances reflect the observation of six members of this Court in Minister for Immigration and Citizenship v SZIAI:
"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."
[29]The legal unreasonableness of the failure by the Authority to get new information by requesting the correct submissions pursuant to s 473DC is plain when the alternative approach taken by the Authority is considered. Rather than taking the simple route of asking for the correct submissions, consistently with its own procedures for returning submissions that are too long, the Authority filleted the submissions that plainly concerned the wrong person into generic and non‑generic information. The Authority then treated the generic information in the submissions concerning another person as though the information had been correctly provided in relation to CHK16's circumstances. On no view could that have been a reasonable course to take.
[30]The Minister submitted that an integer that militates against a conclusion of unreasonableness for a failure to inquire is the lack of any possibility of a useful result. So much can be accepted. If the Authority could not have reasonably expected any useful result it could not be unreasonable for it to fail to invite CHK16 to provide submissions with any new information. But, contrary to the Minister's submissions, there are two reasons which indicate that the Authority might reasonably have expected a useful result from the agent. First, the Authority did not suspect that the agent was fraudulent. A plausible inference would simply have been that the agent had provided the wrong submissions. On that basis, the most likely outcome of an invitation to provide the correct submissions, containing any new information, would have been that they would be provided. Secondly, and in any event, even if the Authority had suspected fraud the most likely response by a fraudulent agent to an invitation to provide correct submissions with new information would have been to do so.
[31]The notices of contention were expressed in terms of the unreasonable failure by the Authority to exercise its power under s 473DC. In oral submissions, the first respondents contended that the same conclusion could be reached on the basis of unreasonableness in the exercise of the Authority's general powers in the conduct of the review. The exercise of powers and functions by the Authority is addressed in Div 5. Section 473FB, in Div 5, provides that the President of the Authority may issue a written direction as to the conduct of reviews by the Authority. As explained above, the Practice Direction issued by the President told referred applicants that the Authority invited and would accept submissions for the purposes of the review. After submissions were provided to the Authority on behalf of CHK16 which did not relate to CHK16's case, and which were understood by the Authority not to relate to CHK16's case, it was legally unreasonable for the Authority not to ask why the submissions did not relate to CHK16's case. That is, no reasonable decision-maker would have decided the review without making further inquiry
[32]Sections 473FB(3) and 473FB(4) do not detract from this conclusion. There was no suggestion, nor could there be, that the Practice Direction was not complied with or that it was not practicable for the Authority to make further inquiry. The steps were simple. But the submissions that the Authority had invited CHK16 to provide, and which were provided and then considered by the Authority, concerned another referred applicant. The Authority found that the submissions did not concern or relate to CHK16. The failure of the Authority to make any further inquiry was legally unreasonable.
[33]No issue arises as to the effect of materiality upon this legal unreasonableness. The Minister properly accepted that it would be a difficult proposition to assert that any coherent and forceful submission that CHK16 might have provided could not have made a difference to his case. He expressly disclaimed a submission that a better submission by CHK16 could not possibly have made a difference. That reasoning must include new information contained in the submission.
[34]DUA16's case is different. In DUA16's case it was not legally unreasonable for the Authority to fail to exercise either its powers under s 473DC to get new information or its powers in the general conduct of the review to get new submissions. 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.
In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, when considering what constituted an unreasonable failure on behalf of the Authority to obtain new information in the exercise of its powers under Part VII of the Act, the High Court said, at [19] – [21], as follows:
[19]The answer is to be found in recognising that "[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made" such that "[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.
[20]Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification" but also that the Authority comes to that decision through an intelligible decision-making process . Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.”
[21]Answering the question therefore requires an examination of the decision‑making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.”
What will constitute a failure on the part of a decision maker to comply with the implied duty of reasonableness when arriving at a decision will depend upon the way in which the decision was arrived at, having regard to the peculiar facts of each and every matter.
The Court accepts the submissions made on behalf of the first respondent to the effect that the inclusion of the erroneous information in the submissions to the Authority in the present matter was not “extreme”, as in the case of CHK16 in ABT17, where none of the personal information related to the applicant. The Court finds, however, that the erroneous inclusion of personal information in the present matter was nevertheless so substantial as to have reasonably warranted the Authority in getting further information from the applicant, or his representatives, about whether or not the submissions, as made to it, were properly, and accurately, made or not. That is particularly so in circumstances where, at [8] of its reasons, the Authority had erroneously formed the view that none of the “new claims”, as set out by the Authority at [5] of its reasons, had ever earlier been made by or on behalf of the applicant.
The failure on the part of the Authority to get new information was unjustified, and was an improper failure to exercise power which ought to have been exercised by a reasonable decision maker. The Court finds that the Authority, acting reasonably, ought to have exercised power under s. 473DC(3) of the Act to get new information from the applicant’s representatives as to whether the submissions were accurate or not, and if not, to what extent they were inaccurate. The Court accordingly finds that it was legally unreasonable for the Authority to have failed to exercise its power under s. 473DC(3) of the Act. The error on the part of the Authority was material.
The applicant has established jurisdictional error on the part of the Authority.
Ground 1 of the Amended Application for Review is granted. The Court is accordingly not required to specifically deal with the other grounds which are, in any event, factually related to the claims under Ground 1.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate: JM
Dated: 28 April 2022
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