BXL16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 856
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BXL16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 856
File number(s): MLG 1554 of 2016 Judgment of: JUDGE RILEY Date of judgment: 11 September 2024 Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether there was a fraud on the Authority by the applicant’s agent – whether the agent inaccurately advised the applicant that he could not submit new information to the Authority – whether it was unreasonable for the Authority to not seek further submissions from the applicant when it was apparent that the submissions that had been lodged contained information unrelated to the applicant Legislation: Migration Act 1958 (Cth) s.473DD Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; 12 ALJ 100; [1938] ALR 334; [1938] HCA 34
Minister for Home Affairs v DUA16 and Others (2019) 273 FCR 213; [2019] FCAFC 221
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; (2020) 95 ALJR 54; 385 ALR 212; [2020] HCA 46
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 9 April 2024 Place: Melbourne Counsel for the Applicant: Kay Chan Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Nicolas Dour Advocate for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Mills Oakley Counsel for a Witness: Amelia Beech ORDERS
MLG 1554 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXL16
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application filed on 21 July 2016, amended on 3 June 2021 and further amended on 16 November 2021 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding.
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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The grounds of review are:
(a)fraud on the Authority, on the basis that the applicant’s agent allegedly told him he could not present new information to the Authority; and
(b)the unreasonableness of the Authority not seeking corrected submissions from the applicant, in circumstances where the filed submissions obviously contained claims about a different applicant.
The applicant’s migration agent (“the agent”) in this case was also a solicitor at the time that she acted for the applicant. In addition, she was the agent whose conduct was discussed in Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; (2020) 95 ALJR 54; 385 ALR 212; [2020] HCA 46. The agent lodged submissions in about 40 protection visa matters, including the present matter, which were based on a template that falsely asserted that the applicant was a police officer, a media personality and a human rights activist. However, the fraud alleged in the present case did not concern the pro forma submissions but the agent’s alleged advice that the applicant could not provide new information to the Authority.
BACKGROUND
In his written submissions filed on 2 April 2024, the applicant provided the following background to this matter:
8.The applicant is a Tamil man from the Northern Province of Sri Lanka. He arrived in Australia by boat on 27 August 2012 (CB127). He applied for a Safe Haven Enterprise visa on 22 January 2016 (CB 38), after the statutory bar preventing boat arrivals from applying for protection visas had been lifted (CB 19, 112-113). His application was made with the assistance of his appointed migration agent, … (the Agent) … (CB 96).
9. The applicant’s initial written claims were outlined in his statutory declaration dated 22 January 2016 (CB 102 – 106) which stated:
9.1 in 2005, the Sri Lankan Army (SLA) bombed his village in Jaffna by helicopter and armed soldiers opened fire in the streets. His family fled to Navali. Navali was under the control of the LTTE. While his family was hiding in a church, the SLA launched an airstrike that killed his uncle and aunty were instantly (sic) and injured his mother, who required a skin graft.
9.2His family then fled to Vanni and later moved to Vavuniya. In 2005, the People’s Liberation Organisation of Tamil Eelam (PLOTE), a former Tamil militant group and a faction of the LTTE, became visibly active in Vavuniya. His family lived close to their compound. He, his father and other villagers were required to work for PLOTE doing construction at their compound. After he finished school he would help his father, a stonemason, to do the stonework. They built offices for PLOTE but did not receive any payment.
9.3 When his father challenged the PLOTE leader about the lack of payment, he was told to obey or suffer the consequences. Out of fear, they continued to work for the PLOTE for free. They knew of other Tamils getting kidnapped, tortured and killed for defying the PLOTE. Mutilated and burnt bodies were dumped outside the villages.
9.4 After living in fear, he fled to Malaysia where he lived and worked legally for five years.
9.5 In August 2011 he returned to Sri Lanka and was detained an (sic) interrogated at the airport. The officers were aggressive and questioned him about why he had been in Malaysia for five years. They recorded his details and address and he returned to Vavuniya.
9.6 About one week later two SLA officers came to his home. He was not there, but they told his mother he was required at the army camp immediately. That same day, he and his father went to the SLA camp. They confirmed his identity and questioned him about why he had left Sri Lanka in 2006 and returned five years later. He explained he went for work and returned because his visa was due to expire. They shook him brutally. They detained him for two hours and released him on the condition that he would return when required.
9.7 He returned to the camp after that at the demand of the SLA. He was again interrogated, beaten and had a gun held to his head.
9.8 He fled the area and went to stay with his sister in Jaffna. His mother told him while he was hiding in Jaffna that the SLA had visited his parents’ home looking for him. They told her they knew he was an LTTE member and they would eventually find him.
9.9 The SLA was also present in Jaffna. He did not leave the house because he feared it was a matter of time before they would detain him.
9.10 The constant fear was overwhelming so his father helped him arrange his journey. He went to meet a smuggler in Vavuniya, planning to leave the same day but his plan was thwarted and he had to stay in hiding for another two weeks.
9.11 He believes he will be detained, interrogated, tortured, abused and / or killed upon return because he is Tamil and a young Tamil male, because the authorities suspect he was in the LTTE, because he has not complied with the SLA and PLOTE demands, and because he left illegally and sought asylum in Australia.
10. The applicant attended an interview with a delegate of the Minister on 22 January 2016 (CB 127 [7]). On 17 May 2016, the delegate refused the application (CB 126 – 147) and the matter was referred to the IAA for review (CB 150 – 389).
11. On 4 June 2016, the Agent sent an email to the IAA attaching a document entitled “Submissions on behalf of [BXL16]” (CB 393). Those submissions stated [inaccurately] (CB397):
35.… The applicant was reading a Human Rights degree at the University of Colombo at the time of his departure to Australia in 2013.
… careful consideration needs to be given in particular to certain profiles, including media personalities and former members of the Sri Lankan Police Force. The applicant belongs to each of these groups. He is a seen as a traitor as he has sought asylum in Australia he has actively divulged insider information about the lack of human rights practices and provided details of the said unlawful Human Rights Practices to Amnesty International and United Nations. … he has insider knowledge of the human rights abuses, having been a senior member of the Sri Lankan Police Force. As a resilient police officer, whose training is to be resilient and strong even at the face of the most tragic of human rights abuses, the applicant displays his fear in the form of nightmares, lack of sleep, insomnia, lack of eating, nightmares, which may be perceived to be not a traditional display of fear, but fear nonetheless taking into account the applicant’s professional training to be resilient as a senior police officer.
… The applicant is obviously perceived as working against the Sri Lankan government, its forces, as an ex police man, as a journalist, as a media person and as a human rights activist/defender.
36. … The applicant instructs that he will be killed if Sri Lankan Authorities find out he has divulged insider information only he knows, detailing human right abuses, he has witnessed, having been a senior police person with Sri Lanka Police.
37.… The latest UNHCR guidelines specifically lists media personalities and expolice men as ‘at risk profiles’ (the applicant belongs to both groups) that have to be given careful consideration to, when assessing their asylum claims…
38. … the applicant is a trained resilient police officer who has been professionally trained not to display fear in the traditional sense… The applicant is a well known public figure as can be ascertained by inserting his name into a google search bar, the applicant has provided articles to the decision maker. …
(footnotes omitted)
THE AUTHORITY’S DECISION
In paragraph 12 of his written submissions filed on 2 April 2024, the applicant provided the following summary of the Authority’s decision:
… The IAA largely accepted the events the applicant described occurred as claimed. It accepted that he was interrogated and required to undress at the airport when he returned from Malaysia in August 2011 (CB 552 [18]). It accepted that he was summoned to the army camp by the CID one – two weeks later and that he was required to report to the camp for further questioning and told to remain at his address (CB 552 [18]). It accepted that on the third occasion on which the applicant was detained and questioned, was assaulted, hit on the head with a rifle and was injured and needed his father’s help to walk home (CB 552 [19]). However, the IAA rejected the applicant’s claims that the army continued to look for him at his parent’s house after he was released on the third occasion, stating: “I am not satisfied the army kept returning to his parents’ house to look for him” (CB 553[23]).
The Authority also noted at paragraph 6 of its reasons for decision that the submissions sent to it by the applicant’s agent regarding the applicant being a police officer, a media personality and a human rights activist did not appear to relate to the applicant and were irrelevant. The Authority said at paragraph 6 of its reasons for decision that:
The submission also provided substantial detail regarding the applicant’s profile as a journalist/media personality, former member of the Sri Lankan Police Force and a human rights defender who has provided information to international human rights bodies. The submission suggests these aspects of the applicant’s profile have resulted in the authorities, their security forces and pro-government Tamil militant groups perceiving the applicant with an antigovernment profile. This is information the applicant had not previously provided to the department that is ‘new information’ for the purposes of this review. On the evidence before me the applicant has never claimed he was a member of any authorities, a journalist or member of the journalistic or media profession, or that he has engaged with human rights bodies or been openly critical of the Sri Lankan government in any way. The submission does not address why the reports could not have been provided before that time, or why they may be considered credible personal information. On the face of it, this information does not appear to relate to the applicant. On the basis of the information before me, I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii), nor am I satisfied there are exceptional reasons to justify considering the information. I am satisfied that this part of the submission does not apply to the applicant personally and I do not consider it relevant to the applicant’s circumstances.
STATEMENT OF AGREED FACTS
In their statement of agreed facts filed on 27 July 2021, the applicant and Minister said that:
1.This statement of agreed facts is made jointly by the applicant and the first respondent, and is made only for the purposes of this proceeding. Agreement to these facts for the purposes of this proceeding does not convey agreement as to the relevance of any of those facts.
2.The applicant engaged … (the Agent) in connection with the review by the Immigration Assessment Authority (the Authority) of a decision of a delegate of the first respondent to refuse to grant him a protection visa. The Agent was at all relevant times a solicitor and migration agent, working as a sole practitioner …. The Agent was admitted to legal practice in 2000, and was registered as a migration agent in 2013.
3.The Agent has drafted written submissions to the Authority in at least 40 other cases (the Submissions), including for the applicants in DUA16 v Minister for Immigration and Anor and CHK16 v Minister for Immigration and Anor [2019] FCCA 1128 (DUA16/CHK16), to varying extent based on a template.
4.The template for the Submissions included information that did not in fact relate to the individual circumstances of all of those clients, including that information to the effect that the client was a former member of the Sri Lankan police force, a media personality, and a human rights activist. For some of her clients, the Agent made some changes to the template to reflect individual circumstances of her client. The template for the Submissions also included country information relating to Sri Lanka.
5.The Agent did not believe that her clients would pay for her services in preparing the Submissions, if they knew that she would only use a template and not appropriately amend it to reflect individual circumstances. In CHK16 and DUA16, she charged each client $600 to prepare the Submissions. It was not her general practice to issue receipts for payments from her clients.
6.The agent gave false evidence to the Court in the CHK16 proceeding. On 31 July 2018, the Agent produced a tax invoice, costs disclosure document and file note with respect to CHK16, and gave evidence that these were contemporaneous documents created on the dates they bore on their face. That evidence was false.
7.The submissions referred to in paragraph [4] above are included as annexures to this document, with third party personal information redacted and replaced with generic identifiers.
(annexures omitted) (footnotes omitted)
THE HEARING BEFORE THIS COURT
At the hearing on 9 April 2024, the applicant and the agent each gave oral evidence. Amelia Beech of Counsel was given leave to appear on the agent’s behalf. The agent was issued a certificate under s.128 of the Evidence Act 1995 for part of her evidence given at the hearing.
At the conclusion of evidence, the parties agreed to orders for the filing of written submissions and for the matter to be determined without a further oral hearing.
MATERIAL RELIED UPON
The applicant relied upon:
(a)his application filed on 21 July 2016, amended on 3 June 2021 and further amended on 16 November 2021 (“the application”);
(b)the court book filed on 1 February 2017;
(c)his affidavit affirmed on 11 June 2021 (exhibit 2);
(d)his written submissions filed on 12 July 2021;
(e)the statement of agreed facts filed on 27 July 2021 (exhibit 1);
(f)his affidavit affirmed on 18 August 2023 (exhibit 3);
(g)his written submissions filed on 2 April 2024;
(h)his affidavit affirmed on 3 April 2024 (exhibit 4);
(i)his further written submissions filed on 20 May 2024; and
(j)the bundle of documents produced under subpoena by the agent (exhibit 5).
The Minister relied upon:
(a)his response filed on 5 August 2016;
(b)the court book filed on 1 February 2017;
(c)his written submissions filed on 26 July 2021;
(d)the statement of agreed facts filed on 27 July 2021 (exhibit 1);
(e)his written submissions filed on 19 April 2024;
(f)his further written submissions filed on 3 June 2024; and
(g)the bundle of documents produced under subpoena by the agent (exhibit 5).
GROUND 1
The first ground of review in the application is:
The decision of the IAA is affected by fraud, in that the applicant’s former migration agent fraudulently deceived the applicant into not presenting potential “new information” to the IAA.
Section 473DD of the Migration Act 1958
Section 473DD of the Migration Act 1958 (“the Act”) relevantly provided that:
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 applicant’s affidavit evidence about new information
The applicant described the new information that he said he was deceived into not presenting to the Authority in his affidavit affirmed on 11 June 2021 as follows:
21.I asked her [ie, the agent] specifically if we could provide new information. I told her that there were problems with people coming to my house in Sri Lanka and looking for me, and that the village headsman could vouch for it. I asked her if I should get the evidence. She said I could not give any new evidence. She told me that we cannot provide any new information to the IAA. This conversation took place in Officeworks, in person, before we were meant to lodge the new application. For this matter, I also signed some documents at that meeting.
…
23.I asked her [ie, his agent] if I should get a letter from the UN or the village headsman (sic) about the people who had been coming to my house. I could have asked my parents to lodge a complaint about the people who had been coming to hassle them about me, even though I was not there. It was the police who had been coming to my house. This was happening while I was still in Sri Lanka, but while I was living away from home. They came two or three times. When I relocated over there, my parents told me then about it. They told me over the phone. They said that the police said that they had said their son would return, where is he now? They said they had not heard from me and did not know where I was. I do not know whether they threatened my parents or made a mess of the house or looked for me any further.
24. This information was not included with my original application to the Department because the lawyer said it had been included, and not omitted, because this was stated in my entry interview. It was the supporting evidence that I could have provided, which would have been new information.
The information described in paragraphs 21 and 23 of the applicant’s affidavit affirmed on 11 June 2021 was not contained in his entry interview.
Principles relating to fraud on the Authority
The applicant summarised the principles relating to fraud on the Authority in his written submissions filed on 20 May 2024 as follows:
5.Fraud is “an advantage gained by unfair means, as by a false representation of fact made knowingly, or without belief in its truth, or recklessly, not knowing whether it is true or false”: Minister for Immigration and Multicultural Affairs v Farahanipour (2001) 105 FCR 277 (Ryan, Tamberlin and R D Nicholson JJ). A finding of reckless indifference is sufficient to found a finding of fraud in the relevant public law sense: Minister for Home Affairs v DUA16 and Others (2019) 273 FCR 213 per Griffiths J at [50], Mortimer J at [101] and Wheelahan J at [185].
6. In a passage cited with approval by the High Court in SZFDE at [41], French J said in Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [74] that any finding of fraud should specify:
6.1 What was said that was fraudulent;
6.2 How it was fraudulent; and
6.3 How it was acted upon.
7. Negligent or bad advice does not establish fraud: Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443 at [33]. In considering whether advice has been given dishonestly, the Court may draw an inference as to the third party’s motive for acting as they did from the available material: SZFDE at [38]. In SZMWT v Minister for Immigration and Citizenship [2009] FCA 559, the Federal Court found that the agent’s advice to the appellant “to do nothing and leave everything to [him]” was dishonest (at [23]), despite that his “actual motives… remain in the realm of speculation” and the Court was unable to “to make a finding about Mr Wang’s motives”: this was because “the overwhelming inference on the evidence is that Mr Wang had a reason to be dishonest with the Department and the Tribunal about his involvement as the appellant’s agent” (at [21(4)-(5)].
8. By contrast, in SZLIX, the Full Court found that the evidence in that case was too vague, indefinite and uncertain to provide a basis from which it could properly be inferred that the respondent’s failure to attend a second Tribunal hearing was caused by the fraud of his agent. Amongst other things:
8.1 the respondent could not name or identify the migration agent claimed to be involved (at [13])
8.2 the respondent’s evidence was that he attended the first scheduled hearing of the Tribunal on the advice of his agent – this did not support a finding of fraudulent conduct by the agent occasioning the respondent’s failure to attend the second scheduled Tribunal hearing (at [27])
8.3 the applicant’s oral evidence was that all communications with the agent was through a friend – thus it was not possible to infer it was the applicant’s dishonest failure that resulted in the Tribunal’s invitation not being conveyed to the respondent; it is equally probably that failure could be ascribed to an error or omission of his friend (at [29]).
9. The Full Court reached this conclusion “particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw… in cases where fraud is alleged” (at [33]). In this respect, Dixon J observed in Briginshaw (at 362-363) that an allegation of fraud:
…does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may (not must) arise from a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues[.]
10. That is, the “Briginshaw test” does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same: proof on the balance of probabilities. However, Dixon J in Briginshaw makes plain that before accepting the truth of evidence of a particular allegation, the Court should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted.
(footnotes omitted)
The Minister accepted the principles on fraud on the Authority as stated by the applicant (Minister’s submissions filed 3 June 2024, paragraph 4) but also added further principles as set out in his submissions filed on 26 July 2021 as follows:
10.Fraud can arise in a wide variety of factual circumstances, such that it is apt to describe the range of potential circumstances as “infinite”. Nevertheless a common element underlying the potential circumstances is dishonesty or bad faith. Thus, negligence will not be sufficient to give rise to fraud.
…
12.In DUA16 (HCA), the High Court affirmed its “insistence” in its earlier decision of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 that “a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review”. “[A]s a ground of judicial review, fraud must affect a particular duty, function or power of the Authority”. “It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense.” ([18])
13. Accordingly, two particular issues emerge. First, what is the nature of the imperative statutory function said to have been stultified by any fraud of the Agent? Secondly, has it been proven that that statutory function was in fact so stultified by the Agent’s conduct?
14. In DUA16, the High Court held that whatever effect the Agent’s fraud in the case “had on the manner or process of decision-making in the abstract, it did not prevent or affect the Authority’s duty to conduct a review in accordance with the process described in Div 3 and to reach an outcome”. “[T]he agent’s fraud did not contribute in any adverse way to the exercise of any duty, function or power by the Authority.” ([22])
15. By contrast, in SZFDE (2007) 232 CLR 189, concerning the distinctly different regime in Part 7 of the Act, the High Court held that the appellants had proved that the fraudulent conduct of a third party had the “immediate” consequence of “stultifying” (or “disabling” or “subverting”) an imperative statutory function. The “concomitant” of the third party’s fraudulent dealings with the appellants was the stultification of the “critically important natural justice provisions made by Div 4 of Pt 7 of the Act”. The appeal “turned on the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of ss 425 and 426A”.
(footnotes omitted)
The call to the Authority on 20 May 2016
The applicant said in paragraph 22 of his affidavit affirmed on 11 June 2021 that:
I understand that there is a file note in the court book which says that I had called the IAA to ask if I could provide new evidence to the IAA. I did not call the IAA at any time. I only called my lawyer to ask about my case. I do not know who called the IAA, but it was not me.
The file note is at CB392 and stated as follows:
On 20/05/2016 at 12:25pm RA [name omitted] called enquiring as to whether their matter had been referred to the IAA yet. After confirming identity, I indicated in the positive, and provided the date of referral and IAA number upon request. RA asked whether they could now appoint a REP and provide submissions. I stated that this was possible, however any submissions must be prefaced by a short letter explaining as to why documents were not provided to DIBP, and that new submissions were not customary in the IAA review process. RA stated they understood and terminated the call.
In his affidavit affirmed on 18 August 2023, the applicant provided his Vodaphone call log for his mobile phone for the period 18 to 21 May 2016. It did not show any calls from the applicant’s mobile telephone to the Authority during that period.
Correction to affidavit
In his affidavit affirmed on 3 April 2024, the applicant sought to correct paragraph 21 of his affidavit affirmed on 11 June 2021, saying that:
… the people coming to my house refer to the police.
Oral evidence of the applicant
The applicant said in cross-examination, for which he was assisted by an interpreter, that he had told the agent all of his claims and his story for the purposes of giving it to a delegate of the Minister. The applicant said that, after the agent had written down his claims and story, an interpreter read it back to him for him to check it. He said that he was happy at that time that the statement contained everything that he had said to the agent.
However, later in the cross-examination, the applicant said that, during his interview with the delegate, he realised that the agent had not elaborated on his claims properly. He also said that he had not told her, “some of the incidents … fearing that those people involved in that may get into problems.”
The applicant said in his affidavit affirmed on 11 June 2021 that, after the delegate rejected his application, he was not happy with the agent and sought advice from Victoria Legal Aid and a lawyer from Sydney. In cross-examination, the applicant said that Victoria Legal Aid could not assist him because of his income. He said that the lawyer from Sydney’s name was “Suvandan”, and he gave Suvandan all the documents relating to his case and $500. He said Suvandan told him that the agent had failed to elaborate about his case in the protection visa application and that, if she had done so, he would have had a better chance. He said that Suvandan told him that the agent should have put in more details about his experience with the militia.
The applicant said in cross-examination that he also consulted a few more lawyers after speaking to Suvandan. The applicant said the lawyers all said that, if you do not give the details at the beginning, it is difficult to give them to the Authority. The applicant said in cross-examination that the lawyers told him that he could put more information in a submission to the Authority.
The applicant was asked in cross-examination if he had told Suvandan that people had come to his house in Sri Lanka looking for him and the village headman could vouch for that. The applicant did not directly answer the question. He said that Suvandan read through all his documents, and the applicant did not elaborate much to Suvandan. The claim about the village headman vouching for the applicant’s claim that people came to his house looking for him was not included in the applicant’s documents at that stage.
The applicant said in cross-examination that some of his friends told him that he could put new information before the Authority, but the agent said it was not possible.
The applicant explained in his affidavit affirmed on 11 June 2021 that he met the agent once at a house in Knox and twice at Officeworks before his interview with the delegate. The applicant said in his affidavit affirmed on 11 June 2021 that, after the delegate’s refusal of the application, the agent told him by telephone that they needed to “reapply” to the Authority within 28 days.
The applicant then met the agent at Officeworks for a third time. In cross-examination, the applicant said he was not sure if this meeting occurred before or after his dealings with Suvandan.
The applicant said in in paragraph 21 of his affidavit affirmed on 11 June 2021 that he specifically asked the agent if he could provide new information, as described. In cross-examination, he clarified that this discussion occurred at a meeting at Officeworks, which was the third Officeworks meeting.
The applicant said at paragraph 25 of his affidavit affirmed on 11 June 2021 that there was no interpreter present at the third Officeworks meeting. He said in cross-examination that he and the agent spoke in Tamil, that her Tamil was broken, and she also used a few English words. However, he said he could understand her well.
The applicant said in cross-examination that, at the third Officeworks meeting, he told the agent that people came looking for him in the village and he wanted to get a letter confirming that. He said in cross-examination that the agent was adamant that no new information could be submitted.
However, the applicant conceded in cross-examination that the agent filed with the Authority on his behalf a doctor’s letter. That letter said that the applicant was from the war-torn and occupied north of Sri Lanka, he had a harrowing tale as a young Tamil male living in a camp and he had PTSD, anxiety and depression. It was also common ground that the agent filed on the applicant’s behalf with the Authority a good deal of country information, and the submission quoted from above.
The applicant was asked in cross-examination if he asked the agent why he could give the Authority a letter from a doctor but not a letter from the village headman. He said he did not ask the agent that question. It was put to the applicant that he did not ask that question because he knew he could give the doctor’s letter to the Authority. He said that the doctor’s letter had been requested by the agent. However, a few minutes earlier, after some equivocation, he had said that it had been his idea to get the letter from the doctor.
It was put to the applicant in cross-examination that he had in fact made the call to the Authority on 20 May 2016, that he was told during that call that it was possible to make a submission to the Authority, and that he said at the end of the call that he understood. The applicant denied that. He said he could not talk like that.
In re-examination, the applicant said that he could not speak more than a few words continuously in English. He said that he trusted the agent when she said he could not put new information to the Authority because he had no alternative. When asked in re-examination why he had thought he could lodge the doctor’s letter with the Authority but not a letter from the village headman, he gave an unclear answer.
The applicant said twice in re-examination that he was “running out of time” in relation to his submission to the Authority. He also said that he had no alternative but to trust the agent.
The agent’s oral evidence
In her oral evidence in chief, the agent said that she no longer works as a solicitor or migration agent but works as an administrative assistant in a solicitor’s office. She said that she remembered the applicant in the present proceeding, and remembered meeting him at Officeworks, but could not remember the details of their conversations as they occurred nine years ago.
The agent said that her recollection was that her understanding when she was acting for the applicant was that new information could be provided to the Authority in special circumstances. However, she said she did not recall the applicant speaking to her about putting forward new information to the Authority.
In cross-examination, the agent conceded that she did not make file notes of advice she gave to clients because she was very busy. She conceded that her file in relation to the applicant, which was exhibit 5, did not include any file notes.
The agent said that she was not dishonest or fraudulent. She said she was depressed and anxious and stressed and had no insight into her illness. She said that she took money from clients, but charged them very little. She said that, at the time, she believed her work was to a proper standard but now accepted that it was not. She said the applicant in the present proceeding was her first immigration client.
In re-examination, the agent said that, when she emailed country information to the Authority on 8 June 2016, she believed it to be new information.
Consideration
The present case is different to DUA16 and CHK16. In that case, the fraud consisted of the migration agent concealing from her clients that she intended to use pro forma submissions with the belief that, if the clients had known that she intended to use pro forma submissions, they would not have paid her for her services. DUA16 and CHK16 were unsuccessful in the High Court on the fraud point because the fraud did not affect any power, duty or function of the Authority. (However, CHK16 was successful on the unreasonableness ground.)
In the present case, the alleged fraudulent conduct was not the use of pro forma submissions, but the agent’s alleged advice that the applicant could not provide new information to the Authority, being more particularly a claim that people had come to his house looking for him, for which he could get a letter from the UN or the village headman to vouch.
The first question is whether the agent actually gave the alleged advice. The agent recalled the applicant, and recalled meeting him at Officeworks, but could not recall the content of their discussion. That is understandable given that their discussion occurred eight years ago. The agent also did not have any file notes of what advice she gave the applicant, contrary to her professional obligations.
However, the agent recalled that her understanding at the time was that new evidence could be submitted to the Authority under “special circumstances”. That evidence was not challenged in cross-examination. It is not technically correct to say that new information could be given to the Authority under “special circumstances”. However, it is a reasonable shorthand to use the term “special circumstances” to describe the test that has been explicated with thousands of words in numerous Federal Court and High Court decisions.
Accepting the agent’s unchallenged evidence that she knew at the time that new information could be given to the Authority in “special circumstances”, it would be surprising if she gave advice to the applicant that was contrary to that knowledge.
The applicant submitted that, in the absence of positive evidence from the agent contradicting his evidence, the court should accept the applicant’s versions of events. The Minister submitted that the court should not accept that the agent gave the alleged advice.
Fraud is a serious allegation that must be proved to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336; 12 ALJ 100; [1938] ALR 334; [1938] HCA 34). The difficulty for the applicant is that he said that the alleged advice was given at the third Officeworks meeting, when there was no interpreter present. He claims that his English was very poor at the time of that meeting, and that the agent only spoke broken Tamil and also used a few English words. He claimed in cross-examination that he was able to understand her “fully well”.
However, how would the applicant know that he had actually understood what the agent had said? It seems entirely possible that, if the agent had tried to explain that he could only give new information in the circumstances described in s.473DD of the Act, he might have failed to understand the distinction between no new information, and no new information except in certain circumstances.
The applicant said at paragraph 21 of his affidavit affirmed on 11 June 2021 that:
She told me that we cannot provide any new information to the IAA.
However, there is no dispute that the agent did provide new information to the Authority consisting of:
(a)a letter from a doctor;
(b)bundles of country information; and
(c)written submissions that included new (albeit wrong) facts.
The fact that the agent in fact provided new information to the Authority makes it less likely that she would have told the applicant that he could not provide any new information to the Authority. However, in cross-examination, the applicant said that:
She was so adamant, and she told me that no new information can be submitted. She was very adamant about that.
The applicant’s evidence on this point is contradicted by the accepted fact that the agent did provide new information to the Authority.
Moreover, the applicant gave inconsistent evidence about whose idea it was to lodge the doctor’s letter with the Authority. At first, after some prevarication, he said the doctor’s letter was his idea. Later, he said that the agent had requested the doctor’s letter. This inconsistency creates some doubt about the applicant’s credibility overall.
The applicant also said in cross-examination that, when he was making his protection visa application, he told the agent all of his claims which she wrote down, she arranged for an interpreter to read them back to the applicant, and he was satisfied at the time that the agent had recorded all of his claims. However, later, he told the court that there were a few other claims that he had not told the agent, because he was concerned that other people might get into problems. This is also a shift in position, which creates some doubt about the applicant’s credibility.
The applicant also conceded that he could not recall whether his third meeting at Officeworks, where the agent allegedly said that he could not provide new information to the Authority, occurred before or after he spoke to Suvandan. He said he could not recall that detail because it all happened eight years ago. That is also a reason that he might not be able to recall exactly what the agent said to him, and that he might be mistaken about whether she said that he could provide no new information, or no new information except in certain circumstances.
The applicant also conceded in cross-examination that he did not ask the agent why he could give the doctor’s letter to the Authority but not a letter from the village headman. If the agent had really said that the applicant could not give any new information to the Authority, that would have been an obvious question to ask.
The applicant said at paragraph 11 of his second affidavit, which was affirmed on 18 August 2023, and which was presumably drafted with the assistance of a lawyer, that:
… As I have stated in paragraph [21] of my affidavit dated 11 June 2021, I was told I couldn’t provide any more information about what happened to me in Sri Lanka and that everything had been provided with my initial application. I did not understand a medical certificate fell into this. I simply thought that it was relevant to my health at the time and how I was feeling. I was still of the understanding that I was not allowed to give any more evidence of what happened to me in Sri Lanka according to what my agent told me.
This is a distortion. The applicant did not say in paragraph 21 of his affidavit affirmed on 11 June 2021 that he was told he could not provide any more information about what happened to him in Sri Lanka. He said in paragraph 21 of his affidavit affirmed on 11 June 2021 that the agent told him he could not provide any new information full stop.
Paragraph 11 of the applicant’s affidavit affirmed on 18 August 2023 was an obvious attempt to overcome a major defect in the applicant’s case, namely, that he claimed the agent told him that he could provide no new information to the Authority, when it is an accepted fact that she did provide new information to the Authority. The fact that paragraph 11 of the applicant’s affidavit affirmed on 18 August 2023 distorts his previous evidence casts doubt on the applicant’s credibility.
In re-examination, the applicant was asked why he did not ask the agent why he could give the Authority the doctor’s letter, but not the village headman’s letter. He said:
I did not know that this letter and that one has any relevance.
When asked in re-examination to clarify, the applicant said:
So this is about my medical condition, about my mental condition. This certificate is about that one. But I was affected by the incidents that – which took place in my village. I do not know – I did not think that this one has any relevance to that.
When asked to explain by his own counsel why he did not ask the agent why he could lodge the doctor’s letter but not the village headman’s letter, the applicant did not say that it was because he understood that he could lodge new information about what had happened to him in Australia but not new information about what had happened to him in Sri Lanka. That makes the statement quoted above from paragraph 11 of the applicant’s second affidavit, affirmed on 18 August 2023, look like a reconstruction, and not the applicant’s own understanding of why the doctor’s letter could be provided to the Authority but not the village headman’s letter.
It was expressly put to the applicant in cross-examination that the agent had told him that new information could be put to the Authority in exceptional circumstances. The applicant vehemently denied that, saying that she had been adamant that no new information could be provided.
The applicant also said that the agent had told him that they had 28 days to “apply” to the Authority. He said twice that he was “running out of time”.
Taking into account all of these matters, I am not persuaded on the balance of probabilities, much less to the Briginshaw standard, that the agent told the applicant that he could not lodge new information with the Authority. In my view, the applicant either misunderstood what the agent said due to language difficulties, or he has reconstructed the events of eight years ago to suit his case. I consider that the agent told the applicant, accurately, that he could give new information to the Authority in limited circumstances. However, I consider that the applicant was not able to get a letter from the village headman in time to lodge it with the Authority, so the agent only lodged the doctor’s letter, the submissions and the country information on his behalf.
In any event, in relation to the telephone call to the Authority, the fact that the applicant’s call records do not disclose such a telephone call does not prove anything. The applicant could easily have used someone else’s telephone, or someone else could have rung on his behalf. It beggars belief that someone other than the applicant, or other than someone on his behalf, would have rung the Authority and asked the Authority exactly the sort of sensible questions the applicant would have asked about his own case. However, in view of the conclusions made above, it is unnecessary to determine whether the applicant made that telephone call, so I refrain from doing so.
I also note that the applicant acknowledged in cross-examination that he received the letter from the Authority dated 18 May 2016, acknowledging receipt of the referral to the Authority. He said he gave the letter to the agent, because he could not read it.
However, the letter states that it has attachments consisting of:
What you need to know about the IAA (English)
What you need to know about the IAA (Tamil)
Practice Direction for Applicant’s, Representatives and Authorised Recipients.
For unexplained reasons, the attachments were not included in the court book. However, the on-line version of the document, What you need to know about the IAA (English), currently has a section headed, Can I provide new information to the IAA? It then sets out a summary of s.473DD of the Act. Presumably, the document, What you need to know about the IAA (Tamil), has the same information in Tamil.
It would follow that the applicant was in possession of a document in Tamil that he could have shown the agent to support his wish to lodge new information with the Authority. Indeed, the agent was also in possession of a document in English which clearly explained the rules about lodging new information.
These attachments make it very unlikely that the agent would have told the applicant that he could not lodge new information with the Authority, or that he would have accepted it if she had said so. However, the attachments were not in evidence before the court, and there was no cross-examination upon them, so I disregard them.
For the reasons discussed above, ground 1 is not made out.
GROUND 2
The second ground of review in the application filed on 21 July 2016, amended on 3 June 2021 and further amended on 16 November 2021 is:
The Authority’s failure to seek corrected submissions containing potentially new information was legally unreasonable.
This ground concerns the fact that the agent lodged with the Authority on the applicant’s behalf submissions that included incorrect information that the applicant was a police officer, a media personality and a human rights activist. As noted above, the Authority considered that the information was new information that did not relate to the applicant and did not consider it pursuant to s.473DD of the Act.
The applicant and the Minister both relied on DUA16 and CHK16 in relation to this ground. In those cases, the agent had lodged submissions which, as in the present case, inaccurately stated that the applicant was a police officer, a media personality and a human rights activist.
In DUA16, the High Court held that, in the circumstances of that case, it was not legally unreasonable for the Authority not to seek further submissions. In CHK16, the High Court held that, in the circumstances of that case, it was legally unreasonable for the Authority to not seek further submissions.
The High Court said in DUA16 and CHK16 that:
26A 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”.
27As 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.
28The 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. (emphasis added)
…
34DUA16’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.
(footnotes omitted)
The present case is similar to DUA16. In that case, the Authority said that it suspected that the erroneous submissions actually referred to another applicant and appeared to have been made in error: Minister for Home Affairs v DUA16 and Others (2019) 273 FCR 213; [2019] FCAFC 221 at [15], quoting the Authority’s reasons for decision. In the present case, the Authority said that, “On the face of it, this [erroneous] information does not appear to relate to the applicant.” In the present case, and in DUA16, the Authority recognised that there had been a mistake and declined to consider the erroneous information under s.473DD of the Act.
CHK16 was different to the present case, because in CHK16, the Authority treated some of the erroneous information, that plainly did not relate to the applicant in that case, as if it did. That was what was unreasonable, and, in the characterisation by the High Court, “extreme”. Nothing like that happened in the present case.
Obviously, in assessing unreasonableness, each case must be assessed in the light of its own circumstances. It is not appropriate to simply check whether a case is closer to DUA16 or closer to CHK16.
However, in all the circumstances of this case, including that, in addition to the offending submissions, the applicant also sent the Authority:
(a)further country information on each of 7 and 8 June 2016; and
(b)a doctor’s letter (after the Authority rang the agent to chase up the missing attachment to an email), and
there was no indication that the applicant wished to provide any more personalised submissions to the Authority, it was not legally unreasonable for the Authority to not ask the applicant to provide corrected submissions.
Ground 2 is not made out.
CONCLUSION
As neither of the applicant’s grounds has been made out, the application will be dismissed with costs. I will hear the applicant and the Minister on quantum.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 11 September 2024
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