EPW17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 364
•26 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EPW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 364
File number: MLG 2224 of 2017 Judgment of: JUDGE FORBES Date of judgment: 26 April 2024 Catchwords: MIGRATION – protection visa – application for review of decision of Immigration Assessment Authority to affirm refusal of visa – where applicants legal representative filed submissions on applicants behalf – where representative engaged in fraud – whether the Authority should have been aware of fraudulent conduct – whether Authority unreasonably failed to seek further information from applicant - whether representative’s fraud vitiated the decision of the Authority – whether Authority constructively failed to exercise statutory duty because of fraud – no jurisdictional error found Legislation: Migration Act 1958 (Cth) s 5H, 36, 473CC, 473DC, 473DD, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BWY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 860
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
DBK17v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1184
FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174
Minister for Home Affairs v DUA16 (2019) 273 FCR 213
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189Division: Division 2 General Federal Law Number of paragraphs: 98 Date of hearing: 27 April 2023 Place: Melbourne Counsel for the Applicant: Mr Stoller Solicitor for the Applicant: Wilmal & Associates Counsel for the Respondents: Mr Yuile Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2224 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EPW17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
26 APRIL 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Applicant’s amended application for judicial review filed 26 March 2019 be dismissed.
3.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the commencement of proceedings.
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 FORBES
INTRODUCTION
By an amended application filed on 26 March 2019, the applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Immigration Assessment Authority (the Authority or the IAA) dated 20 September 2017. The decision of the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a subclass 790 Safe Haven Enterprise Visa (SHEV).
By his amended application the applicant seeks to impugn the Authority’s decision on two grounds. The applicant contends that:
·The Authority acted unreasonably in the exercise of its discretion when it failed to request new information from the applicant under s 473DC of the Act; and
·The Authority constructively failed to conduct the review because the review was vitiated by a fraud perpetrated by the applicant’s legal representative.
For the reasons set out below I have found that the Authority’s decision was not affected by judicial error. Accordingly, the application is dismissed.
BACKGROUND
The following is derived from the detailed outlines of submissions and the Court Book filed prior to hearing, along with a statement of agreed facts and an affidavit of the applicant tendered during the hearing.
The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith. He arrived on Christmas Island by boat in December 2012 as an unauthorised maritime arrival.
By an application dated 12 May 2016, the applicant applied for a SHEV. He was assisted by a solicitor, Ms Sowmiya Rajasekaram, who prepared and filed the SHEV on the applicant’s behalf. The applicant paid Ms Rajasekaram $2,500 to act for him in respect of his SHEV application.
Ms Rajasekaram has gained some notoriety in other judicial review proceedings in the courts in relation to her role as a representative of visa applicants. She is the same solicitor who acted for the visa applicants in the cases of Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550 (DUA16 and CHK16), heard jointly before the High Court. Ms Rajasekaram acted for other visa applicants claiming to be Sri Lankan Tamil asylum seekers in approximately 40 different IAA reviews[1]
[1] Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550 (DUA16) at [1]
On 13 October 2016 the applicant was invited to attend an interview with a delegate of the Minister in relation to his application for a SHEV. On 2 November 2016 the applicant attended this interview. Throughout this process, the applicant was represented by Ms Rajasekaram.
On 29 November 2016, the applicant received a letter notifying him of the delegate’s decision to refuse the visa.
Relevantly, the delegate’s decision identified the applicant’s main claims for protection as follows[2]:
[2] Court Book (CB) 125
·the applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith;
·the applicant was born in Central Camo, Ampare District, Eastern Province;
·he claims his brother was kidnapped by the Sri Lankan Army (SLA) in 2007, as a result of his Tamil ethnicity. He claims his brother was missing from Batticaloa;
·the applicant claims that his brother did not have any connection to the Liberation Tigers of Tamil Eelam (LTTE);
·the applicant claims that he lived in India as a refugee from 1990-1993;
·the applicant claims that in 1993, he was detained in Negombo, for one or two days;
·the applicant claims he was arrested in 1997, during a “round-up”. He claims he was suspected of LTTE involvement, and was beaten;
·the applicant claims that after his brother was “kidnapped” he quit his job, and moved from house to house, as he feared he would be kidnapped. He claims he stayed with friends from 2007 until 2012, when he left for Australia;
·the applicant claims the SLA attempted to kidnap him, and came to his house and threatened him;
·the applicant claims that his cousin was kidnapped in 2007, by unknown people, in a white van. This claim was raised at the PV interview, and it was not his brother who was kidnapped in 2007, as he had previously stated;
·because he was afraid for his life he did not work from 2007;
·he claims the SLA is aware of him because of his brother, who went missing;
·he claims that if he returns to Sri Lanka he will be detained as a failed asylum seeker;
·the applicant claims that he fears the Sri Lankan authorities and the army;
·he fears he will be harmed because he left Sri Lanka illegally;
·he claims he cannot live in another part of Sri Lanka; and
·he claims that he will be mistreated on account of being Tamil and on suspicion of LTTE involvement.
The delegate’s reasons reveal that the application for a SHEV was refused because the delegate did not believe the applicant would face a real risk of harm in Sri Lanka based on any imputed connections with the LTTE. Further, the delegate did not find that there was any real chance the applicant would face serious harm as a failed asylum seeker returning to Sri Lanka. The delegate was not satisfied that the applicant was a refugee under s 5H(1) of the Act, nor did he meet the criteria in s 36(2)(a).
The delegate was also not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(aa) of the Act.
On 30 November 2016 the matter was automatically referred to the Immigration Assessment Authority for Fast Track review.
Immigration Assessment Authority
Ms Rajasekaram was engaged by the applicant to act on his behalf in relation to the IAA’s review of the delegate’s decision. The applicant paid Ms Rajasekaram $1,500 for this representation.
As to Ms Rajasekaram’s conduct in relation to the applicant, the parties helpfully tendered a statement of agreed facts[3] during the judicial review hearing before me on 27 April 2023. I defer to the parties’ agreement in setting out the following narrative.
[3] Statement of Agreed Facts made pursuant to s 191 of the Evidence Act 1995 (Cth), tendered as Exhibit A1
The applicant met with Ms Rajasekaram on three occasions after the delegate’s decision and provided instructions on his claim. Ms Rajasekaram represented to the applicant that she would make submissions to the IAA based on his instructions. That representation was false.
On 16 December 2016 Ms Rajasekaram made written submissions to the IAA on behalf of the applicant. The submission was a template submission which was not based on the applicant’s instructions. The applicant deposed in his affidavit that he was not given a copy of the submissions to read, nor were they read to him with an interpreter, before Ms Rajasekaram submitted them to the IAA[4].
[4] Affidavit of the Applicant at [12]
The parties agree that the template submission prepared by Ms Rajasekaram[5]:
“(a)contained no personal information of the applicant other than his name in the heading; and
(b)contained information that had no bearing on the applicant’s case but related to another Sri Lankan Tamil asylum seeker.”
[5] Statement of Agreed Facts at [9]
I pause to note that in oral submissions, the Minister sought to clarify that the concession at (a) should not be interpreted to mean that nothing whatsoever in the template submissions related to, or could relate to, the applicant.
The applicant did not know Ms Rajasekaram had made submissions that were not based on his instructions until after the IAA made its decision. The parties agree that Ms Rajasekaram concealed from the applicant the fact that she had filed a template submission.
On 14 July 2017 the IAA sought further submissions from the applicant regarding an updated DFAT report on which the IAA wished proposed to rely[6]. The applicant did not respond to the invitation[7].
[6] CB 279-280
[7] CB 295, Immigration Assessment Authority (IAA) reasons at [7]-[8]
On 20 September 2017, the IAA affirmed the decision of the delegate not to grant the applicant a SHEV.
In its reasons, the Authority referred to what it concluded was “new information”, noting that the written submissions contained matters that were not previously raised by the applicant as part of his protection claims. This information included “that the applicant was reading for a Human Rights degree at university, that he was sexually abused and arrested alongside his brother who sought asylum in Canada, and that he was a media personality and former police officer”[8].
[8] IAA reasons at [5]
Even though these claims were identified as new and having not been previously raised, at no point in its reasons did the Authority recognise or suspect that the applicant’s submissions related to another person. The Tribunal simply observed that these claims had been included without explanation.
At [5] of its reasons the IAA found that:
“The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known it may have affected the consideration of the applicant’s claims. At the SHEV interview, the delegate explained to the applicant it was important that he provide the Department with full claims and relevant information as soon as possible and that if he doesn’t provide all his information and claims, and the application is refused, he may not have another opportunity to do so. At the end of the SHEV interview the delegate confirmed with the applicant that he had provided all his protection claims and said if any further information was received before a decision was made it would be considered. The applicant’s agent was present at the SHEV interview. I am not satisfied that there are exceptional circumstances to justify considering this new information.”
The Authority accepted that the applicant is from the Eastern Province of Sri Lanka, is Tamil and is of Hindu faith. The Authority went on to consider the applicant’s claims, and concluded that he is not at risk of harm for any “perceived LTTE links or for any imputed political views”[9]. Moreover, the Authority found that the applicant is not at risk of harm as a Tamil male from the East[10]. The Authority was also not satisfied that the applicant would face a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally[11].
[9] IAA reasons at [40]
[10] IAA reasons at [41]
[11] IAA reasons at [57]
Judicial review
On 17 October 2017 an application was filed in this court for judicial review of the IAA’s decision.
On 26 March 2019 an amended application was filed. The grounds of review are articulated as follows:
1.The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s 473DC of the Act to get information from the applicant or his representative.
2.The IAA constructively failed to conduct the review required by statute because its review was vitiated by a fraud on the IAA perpetrated by a third party.
The two grounds of review run by the applicant in this matter are the same two grounds prosecuted in the matters of DUA16 and CHK16.
For obvious reasons, the final hearing of this application for review was adjourned pending the outcome of the High court appeals in DUA16 and CHK16.
HEARING
On 27 April 2023 the application for judicial review was heard. Mr Stoller of counsel appeared for the applicant and Mr Yuile of counsel appeared for the Minister. A Tamil interpreter was present.
Prior to the hearing the Minister prepared a Court Book and each of the parties filed an outline of submissions. As mentioned, the parties tendered a Statement of Agreed Facts and the applicant tendered an affidavit affirmed 28 March 2023.
Statutory framework
The source of the Authority’s duty to conduct a review of a delegate’s decision to refuse a visa is found in s 473CC of the Act:
Review of decision
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a)affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
Section 473DC deals with the discretion of the Authority to get new information from a review applicant. It provides as follows:
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under s 65; and
(b) the authority considers relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting sub-section (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The decision of the Authority was made in accordance with the Fast Track review provisions of Part 7AA of the Act. The statutory scheme contextualises this Court’s review of the Authority’s decision. The exercise of power by the Authority is subject to the implied condition that it act reasonably in considering or exercising its discretions[12].
[12] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3] (ABT17)
Whilst the Authority must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the parameters of the scheme within which those discretions are granted. As was said by the Federal Court in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]:
“Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
In CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 Thawley J surveyed relevant authorities and affirmed at [45] that:
“The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute: CRY16 at [67]; DZU 16 at [99]; BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]. As noted earlier, Division 3 of Part 7AA (with ss 473GA and 473GB) contains its own exhaustive statement of the natural justice hearing rule: s 473DA(1).”
At [48] his Honour also observed:
“It is also relevant to note that the statutory scheme contemplated by Part 7AA is one of limited review on the papers with a default position of not accepting or requesting new information: s 473DB(1). Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority “is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”.”
Ground One
Ground One asserts that the Authority acted unreasonably by failing to seek further information from the applicant, or in failing to consider whether to seek further information from the applicant.
DUA16 and CHK16
DUA16 and CHK16, heard jointly before the High Court, concerned two respective protection visa applicants from Sri Lanka. Ms Rajasekaram had acted for both applicants in their applications for review with the Authority and made submissions on their behalf. As with the applicant in the present case, Ms Rajasekaram provided pro forma submissions to the Authority[13]:
“The agent said that in 40 cases the submissions that she prepared for the Authority were based upon a template from the first written submission that she had ever prepared. In some cases, the template submissions were not amended at all, and in other cases the template submissions were amended based upon instructions.”
[13] DUA16 at [5]
It was acknowledged by the High Court that Ms Rajasekaram’s conduct in these cases was fraudulent[14]. However, the High Court found that the Authority had acted unreasonably in CHK16’s case, but not in DUA16’s case.
[14] DUA16 at [1]
As the Minister submits, a key distinction between DUA16’s case and CHK16’s case was the amount of correct or accurate information that had been presented by Ms Rajasekaram in the submissions filed with the IAA.
In CHK16, the submissions prepared by Ms Rajasekaram on behalf of the visa applicant contained none of CHK16’s personal information. The submissions concerned a different person altogether[15].
[15] DUA16 at [5]
In contrast, in DUA16, the submissions prepared by Ms Rajasekaram on behalf of the visa applicant “did involve amendments to the template to include his personal information”[16].
[16] DUA16 at [5]
Applicant’s submissions
The applicant submits that his circumstances are factually similar to those of CHK16, where the Authority was found to have acted unreasonably so as to constitute jurisdictional error.
It is clear that Ms Rajasekaram utilised the same, or a similar, submission template in this matter as she did in the matters of DUA16 and CHK16. This is evident from comparing the excerpts detailed by Justice Mortimer (as her Honour then was) in the Full Court hearing[17], with the submissions of Ms Rajasekaram contained in the Court Book for this hearing[18]. For example, the following submissions and text are identical and appear both here and in the submissions made for the applicants in DUA16 and CHK16:
[17] Minister for Home Affairs v DUA16 (2019) 273 FCR 213 (DUA16 FCAFC) at [140]-[146]
[18] CB 150-153
Submission type Example Generic material about the risks facing Tamil asylum seekers upon return to Sri Lanka “There is no political guarantee in Sri Lanka. Asylum seekers are being tortured and jailed when returned to Sri Lanka. Even if a short detention, sexual abuse, torture, kidnapping amounts to degrading and inhuman treatment.” Reference to generic country information about returning Tamils “Included herewith, in article dated 5th January 2016, “Sri Lanka: It is very much business as usual- Yasmin Sooka, it states, “Tamil survivors in four countries around the world gave detailed testimony about brutal repeated torture and sexual assault while in the custody of the Sri Lankan military and Police Units during 2015 [...]” Generic allegations about the delegate’s decision (which appear in identical terms in all submissions) “The decision maker should have given weight to the assertions made by the applicant in his statement of claim and also in the course of the interview with the Department of Immigration and Border Protection.”
“The decision maker failed to consider that the applicant is also at risk as a member of the Tamil race.”
“The decision was tainted with error of judgment.”General references to and summaries of migration legislation which was unnecessary to put before the IAA Well-established propositions about what constitutes a “refugee” or a “well-founded fear of persecution” under the Act References that appear to be unique to the applicant but were in fact included in each submission “The applicant vividly narrates in his recorded interview and circumstances that triggered him leaving Sri Lanka in order to protect his life.” Assertions which appear to have no relation to the applicant’s narrative “The applicant is imputed to be anti-government by the Sri Lankan government authorities, and their security forces […]”
“The decision maker has failed to consider the personal and attended circumstances of the applicant while reaching a decision. The latest UNHCR guidelines specifically lists media personalities and ex-police men as ‘at risk profiles’ (the applicant belongs to both groups) that have to be given careful consideration to, when assessing their asylum claims.”
“It is submitted on behalf of the applicant that he has a well-founded fear of persecution for: (i) reason of his actual/imputed political opinion of being opposed to the Sri Lankan government and its lack of Human rights practices.”
“The decision maker has also erred in their determination that the applicant can re-locate within Sri Lanka when the UNHCR’s latest guidelines clearly state, given the State itself is the enemy and Sri Lanka is such a small country, re-location within Sri Lanka is not possible, as clearly detailed above.”Representations (which appear identical in all submissions) were also made about subjective fears which did not relate to the applicant “The applicant fears threat to life and liberty, significant physical harassment and ill-treatment, significant economic hardship and denial of access to basic services as he is a traitor of the State and Sri Lankan government, denial of capacity to earn a livelihood as a police officer of Sri Lanka or in any other capacity, where such hardship or denial threatens the applicant’s capacity to subsist.” Notably, all submissions to the IAA commence with the following introduction “The applicant seeking review has instructed as follows: […]”
The applicant submits that other excerpts from Justice Mortimer’s reasons also permit the court to infer that Ms Rajasekaram’s submissions in this matter contained elements that were identical to at least one other set of submissions. For example, both here and in CHK18, the submissions state that the applicant was reading for a Human Rights Degree at the University of Colombo at the time of his departure to Australia in 2013. Additionally, in both DUA18 and this matter, the submissions state that the applicant was detained and arrested alongside his brother, who had since sought asylum in Canada.
Regarding the Authority’s application of s 473DC and the Authority’s discretion to seek information, the applicant refers to the following observations in DUA16:
“[28]The circumstances of CHK16’s case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK16. As the Authority was aware, this was the only opportunity that CHK16 would have to provide his own new information, which could be of considerable importance. On CHK16’s case before the delegate, the consequences of refusal of his protection visa could place his life at risk. A request from the Authority for the correct submissions and CHK16’s correct personal information would have been a very simple matter. The Authority had, itself, indicated in its Practice Direction that submissions that were too long would be returned with an opportunity given to provide new submissions. These circumstances reflect the observation of six members of this Court in Minister for Immigration and Citizenship v SZIAI:
“The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.”
[29]The legal unreasonableness of the failure by the Authority to get new information by requesting the correct submissions pursuant to s 473DC is plain when the alternative approach taken by the Authority is considered. Rather than taking the simple route of asking for the correct submissions, consistently with its own procedures for returning submissions that are too long, the Authority filleted the submissions that plainly concerned the wrong person into generic and non-generic information. The Authority then treated the generic information in the submissions concerning another person as though the information had been correctly provided in relation to CHK16’s circumstances. On no view could that have been a reasonable course to take.” (citations omitted)
In the present case, the applicant contends that it was or should have been obvious to the Authority that the written submissions filed on his behalf related to someone other than himself. The applicant gives the following reasons[19]:
[19] Applicant’s Outline of Submissions at [26]
(a)the submission prepared by his representative included no personal information relevant to the applicant (other than his name in the heading). The submission comprises five pages. The first three pages predominantly contained generic information applicable to any male Sri Lankan Tamil asylum seeker. Those aspects of the submissions suffer from the same shortcomings as those identified by Mortimer J in DUA and CHK from [140] – [146]. To the limited extent that the first three pages of the submission contain information specific to any individual Tamil asylum seeker, that information does not relate to the applicant;
(b)at paragraph 7 of the submission reference is made to the risks to young Tamil males. This submission was not relevant to the applicant who, at the date of those submissions, was 51 years old;
(c)at paragraph 16, a submission is advanced that the applicant has “insider information” of some type. This submission was not relevant to the applicant who never made any such claim in support of his application for protection;
(d)at paragraph 20, reference is made to Australia’s protection obligations in respect of a person who “is a member of the same family unit as a person in respect of whom Australia has protection obligations… and that person holds a protection visa”. This information was not relevant to the applicant, whose claim was not made on the basis that he was a member of the same family unit as someone owed protection by Australia, let alone someone who already held a protection visa in Australia;
(e)while pages 4 and 5 of the submission contained some personal rather than generic information, all such personal information plainly relates to someone other than the applicant, for each of the reasons set out below;
(f)paragraph 35 submits that the applicant “has a well-founded fear of persecution for (i) reason of his actual/imputed political opinion of being opposed to the Sri Lankan government and its Human rights practices.” This claim did not relate in any way to the applicant. The applicant never claimed to hold a political opinion that was opposed to the Sri Lankan government, or to its human rights practices (nor to be imputed to hold any such view);
(g)paragraph 35 also submits that the applicant “was reading a Human Rights degree at the University of Colombo…”. This claim did not relate in any way to the applicant. He never made any such claim and never departed from the position that he was educated to a year 8 level and worked his entire life in manufacturing;
(h)paragraph 35 submits that the applicant left Sri Lanka in 2013. This claim did not relate to the applicant, who left Sri Lanka in 2012 and arrived in Australia the same year.
(i)paragraph 35 submits that the applicant “is suspected of a crime”. This claim did not relate in any way to the applicant. He never claimed to have been suspected of any crime in Sri Lanka or otherwise;
(j)paragraph 35 submits that the applicant “has been persecuted by way of sexual abuse by the SLA”. This claim did not relate in any way to the applicant. He never claimed to have been persecuted by way of sexual abuse;
(k)paragraph 35 submits that the applicant was arrested alongside his brother. This claim did not relate in any way to the applicant. He never claimed to have been arrested alongside his brother;
(l)paragraph 35 submits that the applicant’s brother had “successfully sought asylum in Canada”. This claim did not relate in any way to the applicant. He never claimed to have had a brother who had been granted asylum by Canada;
(m)paragraph 35 submits that the applicant fears significant economic hardship because “he is a traitor of the State and Sri Lankan government”. This claim did not relate in any way to the applicant. He never claimed to have been considered a traitor to the State and/or the Sri Lankan government;
(n)paragraph 35 submits that the applicant fears significant economic hardship if returned to Sri Lanka. This claim did not relate in any way to the applicant. He never claimed to fear harm in Sri Lanka due to economic hardship;
(o)paragraph 35 submits that the applicant had suffered or would suffer due to a “denial of capacity to earn a livelihood as a police officer of Sri Lanka” This claim did not relate in any way to the applicant, who always worked in manufacturing; the applicant never claimed to have been a police officer, to have wished to become a police officer, or to have been “denied” the capacity to do so;
(p)paragraph 37 submitted that the applicant belongs to the group “media personalities”. This claim did not relate in any way to the applicant. On the contrary, the applicant always claimed to have worked in manufacturing and never worked, or claimed to have worked, in media (let alone to having been a “media personality”);
(q)paragraph 37 submits that the applicant belongs to the group “ex-police men”. This claim did not relate in any way to the applicant. On the contrary, the applicant always claimed to have worked in manufacturing and never worked, nor had he claimed to have worked as a police officer; and
(r)paragraph 38 submits that the delegate “did not give consideration to the fact that the applicant is a young Tamil male”. This claim did not relate in any way to the applicant, who as a 51-year-old man at the date of the submissions and never advanced any claim on the basis of being a young male.
The applicant submits that if the Authority had compared the submissions filed by Ms Rajasekaram with, for example, the information provided in the applicant’s arrival interview, it would have been immediately obvious that some of the submissions did not relate to the applicant. The applicant asserts that the Authority, exercising its discretion reasonably, should have written to Ms Rajasekaram and requested the correct information, as the High Court found the Authority should have done in CHK16.
The applicant concedes that one factual difference between CHK16 and this case is that in CHK16 the Authority did in fact recognise that the submissions related to someone other than the applicant. But the applicant submits that the Authority’s failure to recognise that fact in this matter was unreasonable.
Further, the applicant submits that the legal unreasonableness of the Authority’s conduct constituted material error. If the IAA had invited the applicant to make better (or accurate) submissions, that could have made a difference to the assessment of his case and led to a different outcome.
Minister’s submissions
The Minister accepts that some of the information provided in submissions to the IAA were not about the applicant. However, the Minister contends that on a fair reading the submissions also contained information that was either relevant to some of the applicant’s claims, or was “sufficiently close to the applicant’s claims that it was reasonable for the IAA not to realise the submission was fraudulent or in error”[20]. The Minister provided the following examples:
(a)the submissions made in [1]-[3] were about risks to failed asylum seekers, which was a claim made by the applicant. Further, he had asserted a link between the LTTE and a family member, as discussed in those paragraphs;
(b)[4]-[7] concerned risks to Tamils and Tamil failed asylum seekers. This related to a claim made by the applicant;
(c)the submissions made at [9]-[15], while potentially applicable to many visa applicants, did come within the circumstances of the applicant. The same can be said of [17]-[34];
(d)in some places, correct information is mixed with incorrect information. So, in the paragraph beneath [35], it was accurate to say that the applicant feared a perception that he was connected to the LTTE, that he had been arrested and detained, and that he feared persecution at the hands of the SLA. The applicant also stated that he feared being arrested and jailed, including because he had left the country illegally. This can be seen as being “suspected of a crime”. The applicant also did claim to have been persecuted by the SLA, though not sexually abused. The information in the submission about the applicant’s brother was not correct, although the applicant’s claims about his brother had changed very substantially over time;
(e)other country information provided in the submissions was relevant to the applicant, even as generic country information; and
(f)the references to “young Tamil male” (eg in [38] of the submission) were arguably not correct, though the applicant was Tamil and, equally arguably, not “old”.
[20] Minister’s Written Outline of Submissions at [9]
The Minister submits that the circumstances of this applicant’s case are not close to the “extreme” facts in CHK16, where none of the personal information in submissions to the IAA related to the applicant.
Furthermore and importantly, the Minister submits that the applicant’s claims had shifted over time, from the arrival interview to the SHEV application and the SHEV interview. It is submitted that those inconsistencies led the Authority to conclude at [19] of its reasons that there were serious concerns about the credibility of the applicant, taking into account “the difficulties of recall over time, the scope for misunderstanding in interpreted material, cross cultural communication issues, and the problems people who have lived through trauma may experience in presenting their story in a cohesive narrative”. For example, the Authority observed at [20]:
“The applicant variously said that he was detained for one or two days by the police in 1993 because he hadn’t registered and he was arrested and beaten in a round up in 1997 on suspicion he was in the LTTE (arrival interview), makes no mention of suffering any arrests, torture or beatings in 1993, 1997 or at any other time (SHEV application statement) and that he was arrested and tortured in 1993 or 1997 by three CID men who showed him a photo of his brother in a LTTE uniform and he was released after paying money and he was arrested and beaten in 1993 or 1997 in a round up by the SLA (SHEV interview).”
The Minister submits that these inconsistent claims meant that the Authority was less likely to realise that Ms Rajasekaram’s submissions were made fraudulently or in error. Rather, the inconsistencies were seen to be the product of the applicant’s own shifting testimony and lack of credit.
A further distinction between the applicant and CHK16 is that, in this case, the IAA did not find that the applicant’s migration agent had made any error. Rather, the Authority took the proper approach of treating information that was inconsistent with previously provided claims as new information, and rejected consideration of it according to the test in s 473DD. Therefore, having excluded the new information from consideration it was not unreasonable for the IAA to decide not to exercise its power under s 473DC to seek further submissions from the applicant.
A final distinction between this case and CHK16, says the Minister, is that the IAA did invite the applicant to make further submissions, albeit in relation to a new DFAT report. However, no submissions in response were received by the applicant. According to the Minister, this meant that the IAA had even less reason to think that the applicant had any further knowledge regarding his case[21]. The Minister submits that the applicant’s failure to respond infers that any further questioning would not have elicited a response, hence any potential error on behalf of the IAA was not material.
[21] BWY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 860 (BWY17) at [46]
Consideration
The applicant asserts that the Authority’s failure to get new (or rather, “correct”) information from the applicant was legally unreasonable.
The standard of unreasonableness requires that the Authority “must have had reason to believe that [the applicant] possessed some relevant information relating to [his claims] that might assist it in conducting its review”[22]. The mere possibility that the applicant may have some useful information is not enough.
[22] BWY17 at [46]
I agree with the Minister that this exacting standard has not been met. I do not agree with the applicant that it would have been apparent to the Authority that the submissions filed on his behalf related to a different visa applicant. That submission is easy to make with the benefit of hindsight, but the discharge of the Authority’s statutory function is not to be judged that way.
I am satisfied that the Authority engaged with the materials before it, including by comparing the submissions with earlier information provided by the applicant in the arrival interview and the SHEV interview. Through this orthodox process, the Authority identified inconsistencies and new information. Inconsistencies and new information are commonly encountered as part of the Authority’s review function. In and of themselves, inconsistencies in an applicant’s narrative over time or the introduction of new information and claims do not signal error or fraud. This was not a circumstance where the submissions were so vastly different from the applicant’s prior narrative (details of which had changed across time) that it would have alerted the Authority to potential error or fraud. It is not a case where the Authority could have been expected to realise that the submissions plainly related to someone other than the applicant.
Factually, the circumstances of this matter bear a greater similarity to DUA16’s case, rather than CHK16’s case. It cannot be said that the totality of the information included in the submissions pertained to someone other than the applicant, as was the case in CHK16.
As mentioned above, Ms Rajasekaram was found to have utilised similar template submissions in around 40 different cases. Two such cases have recently come before this Court: FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174 (FJH17) and DBK17v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1184 (DBK17). Being fact dependent, each had a different outcome.
In FJH17, Ms Rajasekaram edited the template submissions to include substantial personal information about the applicant, whereas other parts of the submissions did not relate to the applicant at all. The Authority acknowledged that some of the submissions differed from the claims previously put forward by the applicant, but (as here) declined to take them into account, as they constituted “new information”. The Authority did not have any suspicions that the new claims related to another person. Further, the decision maker was not “on notice” just because four months prior the same decision maker had reviewed a matter where Ms Rajasekaram had provided a similar template submission. Judge Champion found that the Authority’s failure to make further inquiries was not legally unreasonable, as the submissions were substantially accurate.
In DBK17, Ms Rajasekaram did not edit the template to include personal information about the applicant, aside from the applicant’s name. The bulk of the submissions were found to be general in nature and common to most Sri Lanka Tamil asylum seekers. The only “personal information” included in the submissions were new claims previously not raised by the applicant (and I note that they are the same “new” claims identified in this matter e.g. that the applicant was reading a Human Rights degree at the University of Colombo). In that sense, it is factually similar to this case.
However, unlike FJH17 and the present case, the Authority in DBK17 strongly suspected that the claims and written submissions related to another person. This in part can be put down to the fact that the IAA reviewer in DBK17 had considered substantially similar submissions by Ms Rajasekaram on at least four previous occasions, and the reasons given by the reviewer in each case were also substantially similar. In DBK17 Judge Ladhams found that, in circumstances where[23]:
“(a)the only personal information in the submissions to the Authority, aside from the applicant’s name, that accurately reflected the applicant’s claims was information that tends to be common to most claims for protection brought by Sri Lankan Tamil asylum seekers;
(b)none of the applicant’s narrative of past harm was referred to in the submissions; and
(c)the only personal information that addressed a specific or unique narrative contained in the submissions was information that the Authority correctly identified was not about this applicant,
the Authority ought to have taken the simple step of making an inquiry of the applicant or his representative as to whether the correct submissions had been provided or otherwise inviting the applicant to provide the correct submissions.” (emphasis added)
[23] At [52]
The present matter is distinguishable from DBK17 (and also from CHK17) because there is no evidence that the Authority suspected that the new claims related to another person. There is also no evidence to suggest that the reviewer in this case had ever previously been presented with Ms Rajasekaram’s submissions or that the IAA reviewer should have been on the look out.
I am satisfied on the facts, taking into account the reasoning process of the Authority, that the IAA reviewer was not alive to the fraud or had any reason to be. The decision record reflects that the Authority identified inconsistencies and new information, but that was hardly a unique phenomenon in a fast track review. A different reviewer with a different experience of Ms Rajasekaram’s involvement in protection visa applications might have brought a higher level of sensitivity to their review of the applicant’s claims and might have reacted differently. But here, objectively, the inconsistencies and introduction of new information were not so unusual as to cause the Authority to suspect that the written submissions related to an entirely different applicant.
For the reasons above, I do not find that the Authority acted unreasonably, in a jurisdictional sense, by failing to request or consider requesting further information from the applicant. Ground One is not made out.
Ground Two
The applicant contends that Ms Rajasekaram’s fraud vitiated the Authority’s decision. The applicant submits that the fraud perpetrated by Ms Rajasekaram in this case was the same as her fraud upon the applicants in DUA16 – including the false representation to the Authority that “The applicant seeking review has instructed as follows […]”.
A leading case on fraud perpetrated in the context of a migration decision review in the Refugee Review Tribunal is SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE). In SZFDE it was held that, in general, the applicant bears a heavy onus in seeking to set aside a decision of the Tribunal by reason of the fraud of some third party[24].
[24] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE); Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 (SZLIX)
The fraud must constitute circumstances which might unravel a Tribunal’s decision in order for fraud on the part of the migration agent to amount to jurisdictional error[25]. Mere negligence will not be enough[26]. There must have been a fraud upon the decision-maker such as to mislead the decision-maker and stultify the performance of its statutory task.
[25] SZFDE
[26] SZLIX
In their submissions relating to this ground of review, both parties rely on the High Court’s reasoning in DUA16 and CHK16, along with the decision it was appealed from, Minister for Home Affairs v DUA16 (2019) 273 FCR 213 (DUA16 FCAFC).
In DUA16 and CHK16, whilst it was held that Ms Rajasekaram’s conduct was fraudulent, it did not amount to fraud committed on the IAA such that jurisdictional error was made out. In other words, the fraud did not mislead the IAA.
Applicant’s submissions
The applicant seeks to distinguish this matter from DUA16 and CHK16. The applicant says that here, unlike in DUA16 and CHK16, the Court should find that the Authority was misled or duped by Ms Rajasekaram’s fraud. The applicant submits that the error arises from the fact that the Authority believed or was led to believe that the inconsistencies and new material in the written submissions came about from the applicant’s instructions. In other words, the Authority presumed that the inconsistencies and new information were genuinely introduced by the applicant and his application was (incorrectly) assessed on that basis.
In DUA16 FCAFC Griffith J (in the minority) found that the Authority had not proceeded on the presumption of regularity, because the IAA had recognised that the inclusion of material which obviously did not relate to the applicant was likely provided in error by Ms Rajasekaram[27]. The Authority assessed the submission knowing that it contained information relating to others. Therefore, knowing of that likely error, the IAA was not misled by the agent’s fraud.
[27] At [78]
The applicant submits that the approach taken by Griffiths J (in the minority) in DUA16 FCAFC is the right approach, and that this approach was found to be correct by the High Court in DUA16 and CHK16. Based on that reasoning, the applicant submits that the Authority in the present case must have been misled because the Authority did not know of the fraud which had been perpetrated upon it.
The applicant submits that in this case, the Authority’s core function of reviewing the applicant’s claims under Part 7A of the Act was stultified or subverted because the Authority proceeded on the presumption of regularity and was misled by Ms Rajasekaram’s fraud. Having been misled, it is submitted that the Authority constructively failed to perform its statutory task because the review decision was affected by that fraud.
In support of that submission, counsel for the applicant invited the Court to adopt the minority reasoning of French J (as he then was) in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 (SZFDE FCAFC). At [122] of SZFDE FCAFC his Honour French J observed:
“Fraud and “analogous circumstances” will justify the grant of certiorari if they “distort” or “vitiate” the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances [...]. In either case the decision-making process can be said to have been distorted by fraud in a way that induced or affected the decision.”
The applicant submits that Justice French’s minority judgment was upheld in the High Court appeal in SZFDE, as the “orders that would have been proposed by the minority judge were upheld”[28].
[28] Applicant’s Oral Submissions
In the alternative to the argument above, the applicant contends that had the IAA known about the fraud conducted by Ms Rajasekaram, it might not have made the decision to proceed based on the submissions it received. In this sense the fraud should be seen as stultifying or subverting the Authority’s power to consider whether to seek new information under s 473DC and/or its ability to consider “new information” provided under s 473DD.
Minister’s submissions
The Minister submits that Ground Two invites the Court to uphold an argument that was unanimously rejected by the High Court in DUA16. The Minister seeks to impugn Ground Two on the basis that there is no factual or principled distinction in the current case which would permit a conclusion different to that reached by the High Court.
In DUA16 at [15], the Court affirmed 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, and therefore the statutory functions and powers of the Tribunal”. Negligence or mistake that “leads to detriment to an applicant” is not enough. The fraud must affect a “particular duty, function or power”[29].
[29] At [18]
Accordingly, in DUA16, the High Court found that Ms Rajasekaram’s fraud “did not contribute in any adverse way to the exercise of any duty, function, or power by the Authority”[30].
[30] At [22]
The Minister also submits that applicant’s reliance on Griffiths J’s reasoning in DUA16 FCAFC is incorrect and should be rejected. The Minister refutes the applicant’s contention that the High Court simply adopted or agreed with Griffiths J’s reasoning in DUA16 FCAFC.
The Minister submits that it is irrelevant whether or not the IAA proceeded on the presumption of regularity, as submitted by the applicant in this case. The focus must be on the impact of the agent’s fraud on any duty, function or power by the IAA, not on the affect of the fraud on the applicant. The Minister contends that the applicant was unable to point to any particular statutory function that was impacted by Ms Rajasekaram’s fraud. The IAA’s core function under 473CC, being the requirement to affirm the delegates decision or remit it back to the delegate, was fulfilled. The manner in which the review was carried out is not relevant, as that is a matter for the IAA[31].
[31] DUA16 at [19]
The Minister submits that the applicant’s alternative argument, that the Authority’s power to consider whether to seek new information under s 473DC and/or its ability to consider “new information” provided under s 473DD was stultified by Ms Rajasekaram’s fraud, lacks merit. The Minister submits that:
(a)the IAA did seek new information from the applicant under s 437DC when it put the new DFAT report to the applicant, so it cannot be said that the exercise of that particular function or power was stultified; and
(b)this argument is in contention with Ground One because the applicant says it is the IAA’s failure to further exercise its power under s 473DC that constitutes legal unreasonableness.
Therefore, the Minister rejects the applicant’s submission that Ms Rajasekaram’s fraud affected the capacity of the Authority to exercise its power under s 473DC.
Consideration
In the present case the statutory duty of the IAA to conduct a review is found in s 473CC of the Act[32]. The Authority must conduct its fast-track review of the delegate’s refusal to grant the protection visa within the statutory framework and context which I described earlier in this judgment.
[32] DUA16 at [19]
Ultimately, the IAA must either affirm the decision of the delegate or remit the decision for reconsideration. In DUA16 and CHK16 at [20] the court opined:
“Whether or not the duty in s 473CC is properly described as a “core review function”, it was a duty that was performed by the Authority. The Authority affirmed the decision of the delegate with respect to CHK16 and DUA16 respectively. Whatever effect the fraud might be said to have 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.”
In SZFDE, the Tribunal decision was set aside where a person purported to act as a solicitor and migration agent for a family of applicants, dissuading them from attending a Tribunal hearing. The High Court found that fraud had not only been perpetrated on the applicants but also the Tribunal, whose decision to proceed in the applicants’ absence might have changed had it been aware of the misconduct[33]. In SZFDE, the decision of the Tribunal was set aside for fraud, not because of general maxims such as “fraud unravels everything”, but because the fraud had stultified the operation of the legislative scheme[34].
[33] SZFDE, as cited in DUA16 at [14]
[34] SZFDE, as cited in DUA16 at [14]
The reasoning in DUA16 and SZFDE are the touchstones for determining whether or not fraud has vitiated a decision of the Authority. However, this matter is readily distinguishable from SZFDE, and I see no reason to depart from the reasoning in DUA16, where the circumstances were factually similar.
The applicant in this case has failed to establish that fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Authority. I do not find that the Authority’s duty to affirm the decision or remit it back to the delegate under 473CC was stultified or subverted.
In my view, Ms Rajasekaram’s conduct in this matter could not appropriately be described as fraud which had the capacity to unravel the Authority’s decision. The fraud was perpetrated on her client rather than on the Authority itself. Even if the fraud touched the Authority, it did not prevent the Authority from conducting its review or exercising its discretions within the legislative scheme. For example, the Authority’s capacity to identify new information and inconsistencies in the claims, and to treat them in the conventional way by exercising a discretion not to get further information, reveals that the function of the Authority was performed. At its highest, the applicant only establishes that the Authority’s power could have been exercised differently.
I find that Ground Two is not made out.
DISPOSITION
For the reasons set out above, the applicant has failed to establish that the Authority’s decision was affected by jurisdictional error. The applicant is not entitled to the relief he seeks.
It follows that the application should be dismissed.
I will hear the parties on the question of costs.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 26 April 2024
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