Dua16 v Minister for Immigration & Anor and CHK16 v Minister for Immigration
[2019] FCCA 1128
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUA16 v MINISTER FOR IMMIGRATION & ANOR and CHK16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1128 |
| Catchwords: MIGRATION – Applications for judicial review – Immigration Assessment Authority decision – fraud upon the Authority – agent of applicants providing submission substantially concerning the facts and circumstances of another unrelated applicant – substantially the same submissions used in approximately 40 cases – application allowed. |
| Legislation: Migration Act 1958 (Cth), s.473DD |
| Cases cited: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 |
| Applicant: | DUA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2677 of 2016 |
| Applicant: | CHK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1765 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 1, 2, 3 August, 5 October, 13 December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Counsel for the Applicants in MLG1765/2016 and MLG2677/2016: | Mr McBeth |
| Solicitors for the Applicants in MLG1765/2016 and Solicitors for the Applicants MLG2677/2016: | Wilmal & Associates Amani Lawyers |
| Counsel for the First Respondent in MLG1765/2016 and MLG2677/2016: | Mr Wood |
| Solicitors for the First Respondent in MLG1765/2016 and MLG2677/2016: | Sparke Helmore Clayton Utz |
ORDERS IN CHK16
That a writ of certiorari issue quashing the decision of the Second Respondent made on 4 August 2016.
That a writ of mandamus issue requiring the Second Respondent to re-hear the application for review according to law.
That the matter be listed for further hearing on the questions of whether:
(a)Costs orders should be made, including whether SOWMIYA RAJASEKAROM should meet all or part of the costs of the proceedings.
(b)The conduct of SOWMIYA RAJASEKAROM should be referred to:
(i)the Victorian Legal Services Commissioner; and
(ii)the Office of the Migration Agents Registration Authority (OMARA);
ORDERS IN DUA16
That a writ of certiorari issue quashing the decision of the Second Respondent made on 2 December 2016.
That a writ of mandamus issue requiring the Second Respondent to re-hear the application for review according to law.
That the matter be listed for further hearing on the questions of whether:
(a)Costs orders should be made, including whether SOWMIYA RAJASEKAROM should meet all or part of the costs of the proceedings.
(b)The conduct of SOWMIYA RAJASEKAROM should be referred to:
(i)the Victorian Legal Services Commissioner; and
(ii)the Office of the Migration Agents Registration Authority (OMARA).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2677 of 2016
| DUA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
MLG 1765 of 2016
| CHK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The applicants are Sri Lankan nationals. They met when their cases were listed on the same day in this court. On that day it became apparent that substantially the same claims were being made by each of them against their former solicitor and migration agent. Their cases were heard together as they involved substantially the same allegations concerning the conduct of a solicitor who had acted for each of the applicants and lodged submissions on their behalf to the IAA.
It transpires that the submission made to the IAA by the solicitor for each of the applicants reflect the factual allegations supporting a claim of another unrelated person. The applicants’ respective circumstances were quite different to those of the person described in the submissions. Following discovery by the Minister, it became apparent that the solicitor involved had used substantially the same submissions in around 40 different cases.
The failure of the solicitor to fulfil her professional obligations is apparent. The central issue in these proceedings is whether her conduct was such as to constitute a fraud on the decision maker, in the sense discussed in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
Background to CHK16’s claims
CHK16 seeks judicial review of a decision of the IAA made on 4 August 2016 affirming a decision by a delegate of the Minister to refuse to grant him a protection visa.
CHK16 arrived in Australia on 27 August 2012 (CB53) as an irregular maritime arrival. On 10 January 2013, he was interviewed by an officer of the Department (the post arrival interview) (CB 9). In September 2015 he made an application for a protection visa, the receipt of which was acknowledged on 18 November 2015 (CB 248). On 27 January 2016 the applicant was interviewed by a delegate of the Minister. The application was refused by the delegate on 14 June 2016. On 16 June the application was referred to the IAA (CB299), which affirmed the delegate’s decision on 4 August 2016 (CB433).
CHK16, when making his claims, said that he had bought a vehicle to operate a business transporting construction materials. He paid 500,000 rupees for the vehicle in around 2005 using savings and money borrowed from relatives. It appears that the business was quite successful, however he had only 10,000 rupees saved when the vehicle needed repairs in 2012
He borrowed around 50,000 rupees from a man called [V] to repair his vehicle, a loan which was to be repaid in a month (he “was unable to borrow elsewhere”). He said that “[V] was a well known local money lender. He was also known to take advantage of those who did not have funds and cause problems for those who were unable to pay him back.” He was unable to pay [V] on time and asked [V] for another month to repay the loan. He said that [V] became angry, and told the applicant that he would complain to the authorities to make life difficult for him.
He was later interrogated by members of the CID about an allegation that he had transported goods for the LTTE, which he denied. The CID threatened and abused him. He said that he had heard rumours that [V] had made a false complaint to the CID that the applicant had been involved in the LTTE.
He said that he then feared the CID so much that he sold his wife’s jewellery and paid 400,000 rupees to flee to Australia.
Background to DUA16’s claims
DUA16 seeks judicial review of a decision of the IAA made on 2 December 2016 affirming a decision by a delegate of the Minister refusing to grant him a protection visa.
DUA16 arrived in Australia on 28 September 2012 as an irregular maritime arrival. On 20 January 2016 he applied for a protection visa. This was refused by a delegate on 24 August 2016, and the application referred to the IAA.
DUA16 made claims that he is a Tamil whose parents were killed by shelling in the way in 1999. His older brother [C], looked after the family until he was abducted in 2008 while he was at a bicycle repair shop. The applicant believes his brother was killed by a group connected to the Sri Lankan Army.
DUA16 said that soon after his brother was abducted the Army searched his house. He said that he was afraid, so he quit his job and went into hiding. He said that ‘once in a while’ the Army visited his brother’s wife and asked about his whereabouts. Four years later he said that he left Sri Lanka. He fears harm, principally on the basis that he may be imputed to have supported the LITE.
Applications for Judicial Review
Both applicants commenced their applications for judicial review using documents prepared by a solicitor, Ms Rajasekarom. She assisted them in filing their applications but did not list herself as acting for them in the applications to the court. The grounds she submitted on behalf of the parties were generic and unparticularised.
Amended grounds have since been provided, setting out a number of basis for review that arise out of the conduct of the solicitor, Ms Rajasekarom, who prepared their respective submissions to the IAA.
It is clear that each applicant engaged Ms Rajasekarom separately to prepare submissions on their behalf for the IAA. They engaged her, in part, because she is of Tamil heritage. They each paid her professional fees for this work.
Ms Rajasekarom lodged submissions for each applicant that were in substantially the same terms. The submissions largely related to another person whose individual circumstances were quite different to the applicants in these proceedings. As a result of the discovery process in these proceedings it was ascertained that the solicitor had done this in around 40 different cases. In effect, the solicitor was simply reusing one set of submissions with minor modifications, insufficient to even properly adapt the factual claims to the circumstances of the applicants.
The submissions were based upon claims that the person seeking the protection visa:
a)has insider information on the police force’s “lack of human rights practices” and had witnessed human rights abuses;
b)was undertaking a human rights degree at the University of Colombo at the time of departure to Australia (and that departure occurred in 2013);
c)was a former member of the Sri Lankan police force and a media personality; and
d)previously divulged information about human rights issues in Sri Lanka to Amnesty International and the United Nations.
CHK16 had left school after year 7 and had never studied at university. He had never been a police officer nor a media personality. He was a vehicle operator before leaving Sri Lanka.
The submissions with respect to DUA16 were substantially the same as those made with respect to CHK16, but also included claims that he had been sexually abused and had been arrested with his brother (who had subsequently been granted asylum in Canada).
DUA16 had never been to university, nor worked as a police office or media personality. His claims were based upon the abduction and disappearance of his brother.
The submissions made on behalf of the applicants also complained about the way that the delegate had dealt with relocation issues, despite this not being an issue before the delegate.
It is apparent that the conduct of the solicitor constituted an egregious failure to professionally and responsibly perform her professional obligations on behalf of the applicants. The nature of the applications were very serious: claims for protection on the basis that the applicants say there is a real risk that they would suffer serious harm if returned to Sri Lanka.
The Minister argues that:
a)the conduct of the solicitor goes no further than negligence and should not be categorised as fraud in the relevant sense: as a result it cannot be a basis for judicial review; and
b)even if the conduct were fraudulent, it did not stultify the IAA’s process as the IAA identified that the submission did not appear to be about the applicants and refused to consider it as new information under s.473DD of the Act.
Evidence
Evidence of Sowmiya Rajasekarom
Ms Rajasekarom was required to attend Court to give evidence and produce documents in this matter. She attended on 31 July 2018 and 1 August 2018, represented by Counsel.
Ms Rajasekarom is a solicitor and migration agent. She is a sole practitioner trading as Sonya Baba Legal Service. In her capacity as a migration agent, she was engaged by each of the applicants to prepare their migration applications and the written submissions to the IAA and subsequently the judicial review applications to this court. Ms Rajasekarom was admitted to legal practice in 2000 and has been a registered migration agent since 2013. She gave evidence that she is an experienced migration agent, with experience drafting documents for fast track regime applicants and that she has drafted written submissions to the IAA in at least 40 cases.
Her evidence was to the effect that she understood the nature of written submissions to the IAA, including that the IAA would assume an applicant had said everything they wished to say in relation to why the delegate’s decision was wrong. She also said that she complied with the IAA’s practice direction. Although, when asked directly about the content of her written submissions, she denied that her written submissions went to why the applicant disagreed with the delegate’s decision and said “I just made general submissions”.
Her evidence was that she charged CHK16 $600 to draft his visa application to the Department and a further $600 to draft his submission to the IAA.
She produced her records, including trust account records, relating to DUA16. The documents she produced were copies as she said she previously gave the original file to the applicant’s solicitors. She said that she had charged DUA16 $1200 to draft his application to the department. When the application was rejected, she charged a further $600 to draft his submissions to the IAA. She said that she understood that the crux of the applicant’s case was that his brother had been kidnapped and that police had gone to his sister-in-law’s house looking for him and he feared for his life. She did not issue a tax invoice nor provide any costs disclosure to her client.
In cross-examination, she was shown the written submissions that she prepared which referred to a former policeman and media personality. When questioned, she said this reference was a mistake that arose because she used a draft submission from another client’s file.
Counsel for the applicant showed the applicant the bundle of written submissions to the IAA prepared by her in 40 cases, which are substantially the same. She said that she used a template for her written submissions to the IAA. She conceded that she had routinely put submissions to the IAA that contained the identical facts (arising from the template submissions) even though the applicants’ individual circumstances varied. She said that the template was from the first written submission she prepared.
The degree of the amendments she would make varied, she said, based on the client’s instructions. For example, in DUA16 she said that the applicant advised her of particular information that he wanted to include in the written submissions.
Whilst the witness gave evidence that she held out to her clients that she was acting for them as individuals, her practice of amending the template document, suggests that she was simply using a pro forma set of written submissions.
When asked about her success rate with the same set of written submissions used in at least 40 cases, it was her evidence that 39 of the 40 lost with this set of submissions. When asked whether this caused her to reflect on her submissions, she said that she thought the applicants’ cases were not very strong.
When asked about her accounting practices she said that it was not her practice to issue receipts and she did not have a receipt book nor a ledger that showed the payments she had received from clients. When asked how she completed her tax returns, her evidence was that “I just give it to my accountant”. When further asked what “it” was, her evidence was then that she gives nothing to her accountant, she simply tells the accountant how much she earns at the end of the month.
CHK16
When asked about a tax invoice and a costs disclosure document that had been produced, Ms Rajasekarom then said that she did issue tax invoices. It was put to the witness that she created the file notes and tax invoices that she had produced, only after receiving a request from the applicant’s current solicitors on 20 March 2018. Her evidence was that she had file notes and invoices for the file but failed to print them off when handing over her file to the current solicitors. She was also asked about the file note dated 25 June 2016, the date the witness met with the applicant to prepare the IAA submissions. Her evidence was that she did not take notes during this meeting but that this file note was prepared later that evening and was an accurate description of what she told the client at the meeting and what the client told her. It later transpired that these were documents were created after these proceedings commenced.
Ms Rajasekarom gave evidence that she had contacted the applicant to advise that the IAA had rejected his case. She then took a further cash payment of $600 to assist him file an application in this Court. She has no file notes of that application nor a tax invoice. She conceded that the court application was in the client’s name even though she still acted as his solicitor. Her reason for doing so was because she didn’t think “his case was going to be successful” despite having drawn the grounds of judicial review herself.
The solicitor said that she did not tell CHK16 much about the review process before the IAA. She said she told him that the IAA is reviewing him and that he will have to make submissions about how he cannot go back to Sri Lanka. She did not ask the applicant if there was any new information that he wanted to give. She did not show the applicant the written submissions she prepared on his behalf, prior to making those submissions before the IAA. When asked why she didn’t show him the submissions, her evidence was that she did not think about telling him. The witness said she told CHK16 of the delegate’s decision but could not recall if she explained why the delegate had refused the application.
Remarkably, Ms Rajasekarom said that from the 40 cases in which she had prepared written submissions, she could not recall advising any of the clients of an opportunity to seek to put on new information but she thought, from the information contained in one file, that she must have advised at least one client.
Counsel for the minister explained to Ms Rajasekarom, that one of the grounds for review was that the IAA’s decision should be quashed because she perpetrated a fraud on the authority. She denied that she had committed a fraud by knowing that certain information in the submissions to the IAA was false. She also denied that she had committed a fraud by advising the client that there was no new information that he could put on in the written submissions.
She was asked for an explanation as to how the same facts occurred in the 40 or so written submissions. Her evidence was that she was the only person involved in the preparation of the written submissions. She said that she would start with the template document and remove the template name and replace it with the applicant’s name, she would do the same again about two thirds down the first page. She said she would then read the submissions and make general submissions. Her evidence was that she did not know that the irrelevant information (being the factual information that did not relate to the applicants) was in the submission. Her evidence was that it was a mistake. She said that she did not read the written submissions every time because she basically knew what was in the submissions. She explained that she used the template submissions wrongly thinking that this was a summary of recent country information. She conceded that for some applicants she made no changes to the template document and for other applicants she said that she made substantial changes.
DUA16
The witness was shown the written submissions that she had prepared for DUA16. She conceded that she made amendments to the template document which were specific to this applicant e.g. the fact that he lost his parents in the war and one of his brothers is still missing. Her evidence was that she made more changes to the template in circumstances where the applicant asked her to include particular information.
Her evidence was that she read the IAA’s decisions prior to giving the advice about appealing. She said it was on reading the CHK16 decision that she realised she made some mistakes in the written submissions. The IAA’s had said, in the decision in CHK16:
Of some concern is the fact that, despite clearly referring to the applicant, the submission contains reference to claims that appear to have no logical bearing or connection with the applicant typically have a media personality ---
She said that after she read about this mistake, she revised the submissions but must have missed the remaining inaccurate claims which were still included from the template document in DUA16’s case.
She did not advise her client that there were errors in the submission (created by her). She did not offer to her client to send a letter to the court or draft an affidavit highlighting that errors in the written submissions were caused by her and due to no fault of the client. She conceded that such would have been the ethical course but that it did not occur to her to take responsibility for the error.
Counsel for the Minister took the witness to the applicant’s affidavit to ask her to respond to that material. She said that she could not recall the amount she charged the applicant, she could not recall telling the applicant that he had a good case nor that she told the applicant that she was going to keep his IAA application substantially the same to the one drafted by his previous solicitors (for credibility reasons). She could not recall if she explained to the applicant, in Tamil, the delegate’s decision. Nor could she recall asking the applicant if there was any other information or documentation he would like to provide in his submissions.
The witness was asked about the grounds for judicial review that she had prepared, and in particular the claims about the “wrong legal test” and the concept of “procedural fairness”. She said that she just put in whatever grounds were on her work template and would send the applicant to the Federal Circuit Court for judicial review. Whether she had any real understanding of concepts was less than clear, however, she clearly did not turn her mind to whether there was any arguable basis for the grounds she put in the applications to this court.
The solicitor’s computers
After the commencement of proceedings, on the fourth day of trial, Counsel appearing on behalf of the witness, advised that the witness objected to giving further evidence unless a s.128 certificate was issued under the Evidence Act. A certificate was issued.
The witness produced her laptop computer as ordered, although she referred to it as “her new computer” which she had purchased on 24 July 2018. Her evidence was that the information relating to the applicant was contained on her ‘old computer’ which had ‘crashed’, and that all the information on her old computer had to be deleted in order to repair it.
On that day, an order was made requiring the witness to preserve the old computer (being the one she delivered to Officeworks for repairs on 24 July 2018) and that she forthwith retrieve that computer and deliver it to the Court registry. The old computer was subsequently delivered to the Court room on 2 August 2018. Her evidence was that after purchasing the new computer, she engaged an IT expert to transfer the files from the old computer to the new computer. She gave evidence that the old computer was purchased on 21 September 2017 (producing a receipt for the purchase), and then conceded that the applicant’s submissions could not have been produced on the old computer.
It had previously been put to the witness that invoices, file notes and tax receipts dated 2015/2016 were created subsequent to a request from CHK16’s new solicitor to produce such documents. She had denied this allegation and confirmed that the documents had been created on the dates they bore on their face.
The witness was handed her (new and working) computer as well as a bundle of documents (exhibit 4). Arrangements were made for the computer screen to be displayed on a large monitor observable by all those present in the court room. The bundle of documents (including tax invoices, files notes and tax receipts) were the documents given to CHK16’s new solicitors by her following a request to do so on 20 March 2018.
The witness was asked to navigate on the computer to a number of documents that appeared to be electronic originals of those contained in her file:
a)A document described as “file note TT” was said to be the electronic original of the document that appears at tab 2 of exhibit 4, entitled “file note 18 10 2015”. The metadata of the file was displayed showing that it was created on 21 March 2018 at 12.34 and was last modified on 21 March 2018 at 12.34.
b)The document “Template Invoice 13.12.2017” on the computer was said to be the electronic original of tab 1 of exhibit 4 (being a tax invoice to CHK16 dated 25 June 2016). She conceded, after viewing the metadata, that this document was created on 13 December 2017 and last modified on 22 March 2018.
c)The witness was also taken to the electronic original of the document “27 01 2016 Interview with Department”. The metadata recorded that the electronic document was created on 21 March 2018 at 10.36am and last modified on that date.
These documents stand in stark contrast to the document titled “Affidavit_FCC_0313V1 T[deleted]” on the computer. This document was the electronic original of CHK16’s affidavit in support of the application to this Court. The dates in the metadata showed that document was created on 14 June 2016 and last modified on 8 August 2016, consistent with the case chronology.
When asked why these documents were created after the letter from CHK16’s solicitor on 20 March 2018, her evidence was that she was “really scared” that she was going to be subpoenaed to give evidence and that she was “very anxious about it”. The following exchanged occurred:
COUNSEL: You knew that things hadn’t been properly done, though, didn’t you?
WITNESS: ---Yes.
COUNSEL: You knew that you had provided submissions on behalf of CHK16 and DUA16 which had nothing to do with the facts in their case, didn’t you?
WITNESS: ---I didn’t know that.
COUNSEL: So is it the case that you gave a costs disclosure statement to CHK16 at any time?
WITNESS: ---No, I didn’t.
COUNSEL: Did you give an invoice or receipt to CHK16 at any time?
WITNESS: ---No, I didn’t.
COUNSEL: Did you take file notes of any of your meetings with CHK16?
WITNESS: ---No, I didn’t.
COUNSEL: Did you give a costs disclosure form form – to DUA16 at any time?
WITNESS: ---No, I didn’t.
COUNSEL: Did you give him an invoice or a receipt at any time?
WITNESS: ---No, I didn’t.
COUNSEL: Did you take any file notes in relation to any of your meetings with him?
WITNESS ---No, I didn’t.
When cross-examined by Counsel for the Minister, she conceded that part of her evidence on 31 July 2018, being the evidence where she described having created the documents, was false. It was then her evidence that no other evidence she gave on the previous occasion was false.
Conclusions
Ms Rajasekarom was a most unimpressive witness. Not only was her representation of the applicants well below what should be expected of a legal practitioner and migration agent, she gave false evidence to the court. I do not accept that she was an honest witness.
It was apparent that she approached the cases on the basis that she didn’t think they were strong, and just went through the motions of providing documents. She accepted that if the applicant’s had been told that she was just going to use a pro-forma submission they wouldn’t have been prepared to pay for that. In substance, she took a fee to provide a professional service in circumstances where she believed that the client would not pay for the service if the client was aware of the true nature of the service she intended to perform.
I am not persuaded that the creation of the submissions to the IAA could be explained as mere negligence, having regard to the facts that:
a)Substantially the same submissions were used in around 40 different cases; and
b)It is was with respect to a document that is, of its nature, unique to the particular applicant (as it sets out the applicant’s submissions about the risks they personally face). Documents of this type are not simply pro forma documents like leases or contracts, which are likely to be largely identical from case to case.
At best the conduct in creating the documents was reckless, and at worst dishonest. The documents presented false accounts to the IAA and failed to present the accounts of her clients which she had agreed to do for a fee.
In this case there are a number of surrounding circumstances:
a)the solicitor has been dishonest in evidence before the court;
b)she has created false documents to provide to the parties;
c)she kept no notes of her interviews with the applicants;
d)she does not appear to have complied with her professional obligations with respect to accounts; and
e)she took no steps to attempt to ensure that her clients would not suffer further losses as a results of her default (for example by providing a statement confirming that the documents were created in that form through her error and without the knowledge of the clients).
When considering the conduct as a whole it appears that there was never any intent on the solicitor’s part to properly carry out the task of preparing submissions to the IAA. However, I am not persuaded that she actively set out to deceive the IAA – on balance it seems to me that she simply did not care, as is apparent from her repeated use of a pro forma submission that was unsuccessful on more than 30 occasions.
The result was that submissions were made to the IAA that did not reasonably reflect the cases of either applicant. In this respect she was not honest in her dealings with her clients, and acted without any concern as to whether the documents sent to the IAA were true or false. The effect of the conduct was that the applicants substantively lost the last (and very limited) opportunity available to them to place submissions or evidence before the IAA.
CHK16
CHK16 gave evidence and relied on his affidavit sworn 4 April 2018. He was an unsophisticated witness with limited understanding, despite being assisted by a Tamil interpreter.
CHK16 gave evidence that Ms Rajasekarom did not advise him that she would make submissions to the IAA on his behalf. He said that he paid Ms Rajasekarom $1,300 to prepare his migration application. He said that in his meeting with Ms Rajasekarom he told her he could not go back to Sri Lanka because his life was in danger. He did not provide further information because she did not ask for it.
CHK16 said that at his initial interview with Ms Rajasekarom she asked only two questions; why he could not return to Sri Lanka and whether he had family in Sri Lanka. His evidence was that was all that was discussed at the interview.
When CHK16 attended for his Department interview he said that he met Ms Rajasekarom in the department foyer. His evidence was that Ms Rajasekarom did not inform him about the department interview process. He said that at the interview the delegate told him it was important to put forward all his information and claims then. He said the delegate did not tell him that there would be a further opportunity to provide new evidence if there were exceptional circumstances.
The applicant said that Ms Rajasekarom rang him after the delegate interview and told him the decision was negative. She also told him that he could appeal to the IAA and she asked for a further $600 for that application. The applicant understood that Ms Rajasekarom would be providing submissions on his behalf.
The interpreter was asked to interpret Tamil part of the IAA referral document that appears in the court book. The interpreter’s evidence was that, whilst it is written in Tamil script he was unable to translate the document because the “the alphabets are different”: it seems that a word pressing malfunction had made the Tamil text nonsensical. I accept that the Tamil text would not have been understandable by CHK16.
CHK16 did not depose, in his affidavit, that the Agent advised him that he did not have an opportunity to give a submission or seek to give "new information" to the Authority. Counsel points to the contrast with DUA16 (represented by the same solicitors and Counsel in these proceedings) who did depose in his affidavit that the solicitor told him that there was no "other documentation that [he] could provide or anything else [he] could do to make [his] case stronger". Thus, it was argued, that the Agent did not prevent CHK16 from providing new information as a result of her advice, and therefore did not fraudulently deprive CHK16 of an opportunity to be "heard" by the Authority. The argument was developed into one that the Agent simply failed herself to advise the applicant of an opportunity which he had under the Act. It was also argued that on CHK16's account, it appeared that he was prepared to pay $600 for the Agent to simply "fill out [a] form for IAA". CHK16’s evidence was confused. It is clear that he had no real understanding of the processes. To draw such fine distinctions appears unrealistic in the context of his evidence as a whole: he paid for the skills of a professional solicitor and migration agent to handle his case and he had no real understanding of what was involved.
It was difficult to assess his credibility given his obviously limited education, the nature of the issues, and having to hear the evidence through an interpreter. Whilst I do not find that he was a very accurate witness I am satisfied that he sought professional assistance to put his claim for protection on the basis of his own circumstances, and that he relied upon his solicitor for that assistance. Generally I would prefer his evidence to that of the solicitor.
DUA16
DUA16 gave evidence and relied on his affidavit sworn 30 March 2018. He was also assisted by a Tamil interpreter.
He said that Ms Rajasekarom told him that he had a good case. He was not aware that a statutory declaration Ms Rajasekarom filed on his behalf was in substantially the same terms to one prepared and provided to the department by his previous solicitors. He said that Ms Rajasekarom did not explain to him the main reasons the delegate rejected his case. He said that he asked Ms Rajasekarom whether he could supply additional documents and was told that he could not.
DUA16 was asked whether Ms Rajasekarom translated the applicant’s statutory declaration, or part thereof to him. He said that she did not speak much Tamil and there was no translator present. He later gave evidence that he could not read. He said that Ms Rajasekarom did not discuss the delegate’s interview process with him before the interview.
As was the case for DUA16, the Tamil text in the document sent to him was nonsensical, even if he were literate in Tamil.
He said that he had no friends who spoke English and Tamil and who understood Australian migration law. To this extent, his evidence was that he was reliant on Ms Rajasekarom to explain the delegate’s reasons to him.
He understood he ought to make all his claims at that stage and that there would only be limited opportunity to provide new information in exceptional circumstances.
He said that he had asked Ms Rajasekarom to email him the delegate’s decision. He said that he was under the impression that Ms Rajasekarom would email him the decision and that she would then get an interpreter and explain it to him. Although he conceded that he did not ask her to do that and that he did not ask an English-speaking friend to translate the reasons for him.
DUA16 set out in his affidavit that the solicitor told him that there was no "other documentation that [he] could provide or anything else [he] could do to make [his] case stronger". DUA16’s oral evidence about whether he asked Ms Rajasekarom to provide new information to the IAA was confusing. First, he said that he had asked her to provide new information, but then he could not explain how this was the case if he had not had the delegate’s decision translated to him. He then said that if Ms Rajasekarom had told him he had the opportunity to provide new evidence, he would have provided such. He later said that he did ask Ms Rajasekarom if he could provide new information but that was only after he realised the information she had provided was identical to “which was given by the previous lawyer and the other lawyer”. From DUA16’s evidence on this topic I am not persuaded that he asked Ms Rajasekarom if he could provide new information (nor was told that he could not supply further information). However, I am persuaded that he would have sought to provide more information, if she had told him he had the opportunity to do so.
It was difficult to assess the credibility of DUA16 given his obviously limited education and understanding of the nature of the issues and having to hear the evidence through an interpreter. He was not a sophisticated witness. Whilst I do not find that he was a very accurate witness, I am satisfied that he too sought professional assistance to put his claim for protection on the basis of his own circumstances, and that he relied upon his solicitor for that assistance. Aside from my specific findings, I generally would prefer his evidence to that of the solicitor.
I am not persuaded that either applicant was aware of the solicitor’s defaults, nor that they in any sense acquiesced to her misconduct. Nor am I persuaded that they were indifferent to the conduct of the solicitor: I accept that they genuinely sought and paid for professional assistance in putting their cases for protection visas.
Effect of the conduct on the process of the tribunal
Counsel for the Minister argues that regardless of the findings set out above, the conduct of the solicitor did not stultify the performance of the IAA’s function. It was argued that:
The information and submissions that were not about the applicants were not considered by the Authority. The Authority (correctly) concluded that this material had been included in the Submission in error by the Agent. Furthermore, and in any event, the Authority was not satisfied that the material cleared the hurdles erected by section 473DD of the Act. The Authority did not consider the material, therefore the inclusion of this "irrelevant" material cannot be said to have stultified the Authority's decision.
I accept that:
a)the conclusions of the IAA with respect to the submissions in each case meant that the IAA did not consider irrelevant or extraneous material, and as such were not misled by extraneous material; and
b)the conduct of the solicitor did not result in the IAA being prevented from considering the material already before it and proceeding to make a decision.
However, the task of the IAA is broader than merely considering the material provided to it by the Secretary. The IAA must also consider whether to ‘get’ or receive ‘new information’. In order to do so applicants must have some opportunity to make submissions that new material should be considered. It was this opportunity that was lost to the applicants due to the conduct of their solicitor. Of course, unlike other visa types, no remedy other than judicial review is of assistance to applicants for protection visas: monetary compensation is inherently inadequate for the loss of a chance to avoid serious harm or death.
Applying the existing authorities to the conduct in this case is difficult. The solicitor did not set out to actively prevent the clients from engaging in the IAA process. However, the effect of the conduct was to thwart a real or substantive engagement by the applicants with the IAA. The conduct exhibited an element of dishonesty in the solicitor’s dealings with the clients, and recklessness in her dealings with the IAA.
In light of the conduct of the solicitor in this case I am persuaded that it is appropriate to set aside the decisions by the IAA as the proper performance of the IAA’s functions was stultified by the conduct of the solicitor.
Consequential orders
Given the conduct of the solicitor in this case it is appropriate that the court consider referring the papers to the Victoria Legal Services Commissioner and the Office of the Migration Agents Registration Authority (OMARA). The parties and the solicitor should have an opportunity to be heard before any such order is made. Similarly, all parties and the solicitor should be heard on the question of costs including whether the solicitor should meet all or part of the costs of the proceedings directly or by way of indemnifying one of the parties.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 30 April 2019
CORRECTION:
The quote at paragraph 82 was incomplete due to a formatting issue of hidden text. The quote is now included.
AND THE COURT NOTES THAT this correction is made following the appeal decision of the Full Court of the Federal Court of Australia in Minister for Home Affairs v DUA16 [2019] FCAFC 221.
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