FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2023] FedCFamC2G 174

Federal Circuit and Family Court of Australia

(DIVISION 2)

FJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 174 

File number(s):

MLG 2676 of 2017

Judgment of:

JUDGE CHAMPION

Date of judgment:

9 March 2023

Catchwords:

 MIGRATION LAW – Refugees – Immigration – Application for protection visa – Safe Haven Enterprise Visa –  Judicial review – Applicant engaged registered migration agent to provide submissions to the Authority – Agent provided pro forma submissions containing personal information relevant to different person – Authority disregarded this information – Authority did not make further inquiries – Whether Authority’s discretion to not get more information was legally unreasonable – No jurisdictional error  

Legislation:

 Migration Act 1958 (Cth) ss. 473BB, 473CD, 473DB, 473DC, 473DD, pt. 7AA

Cases cited:

 Minister for Home Affairs v DUA16 and CHK16 (2020) 271 CLR 550

Minister for Immigration And Citizenship v. SZIAI (2009) 83 AJLR 1123; [2009] HCA 39

Division:

Division 2 General Federal Law

Number of paragraphs:

48

Date of last submission/s:

16 February 2023

Date of hearing:

16 February 2023

Place:

Melbourne

Counsel for the Applicants:

Dr McBeth

Counsel for the Respondents:

Mr Yuile

Solicitor for the Applicants:

Victoria Legal Aid

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

MLG 2676 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJH17

First Applicant

FMP17

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE CHAMPION
DATE OF ORDER:	9 MARCH 2023

THE COURT ORDERS THAT:

1.The Amended Application filed on 1 February 2023 be dismissed.

2.The Applicants pay the First Respondent's costs in a sum to be fixed if not agreed. 

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CHAMPION:

INTRODUCTION

1. FJH17 (the First Applicant) is the father and litigation guardian for FMP17 (the Second Applicant) who is currently 16 years old (together, the Applicants). The Applicants are Sri Lankan nationals.

2. The First Respondent is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) and the Second Respondent is the Immigration Assessment Authority (together, the Respondents).

3. This is an application for review of a decision made by the Immigration Assessment Authority (Authority) on 28 November 2017. The Authority affirmed the decision of the delegate of the Minister (Delegate) made on 28 April 2017 not to grant the Applicants a Safe Haven Enterprise Visa (Visa).

4. The unanimous decision of the High Court as to two matters it heard and decided together and reported as Minister for Home Affairs v DUA16 and CHK16 (2020) 271 CLR 550 (DUA 16 and CHK16) provides important guidance as to the matters under consideration in this case.  I will return to this decision below.

5. For the reasons that follow, I have decided to dismiss the Application for review.

   BACKGROUND

6. On 7 May 2013 the Applicants arrived in Australia as unauthorised maritime arrivals.

7. On 22 February 2017 they applied for the Visa.

8. As set out above, the Delegate refused to grant the Applicants the Visa on 28 April 2017 and, on 4 May 2017, the Applicants applied to the Authority for review of the Delegate's decision.

   The Agent’s submissions

9. On 22 May 2017, the Applicants’ lawyer and migration agent (Agent) filed submissions with the Authority for and on behalf of the Applicants (CB215) (Agent’s Submissions). As the content and correct characterisation of the Agent’s Submissions and how the Authority dealt with those submissions is important to this Application, it is necessary to refer to the content of those submissions in some more detail.

10. The Agent’s submissions were provided to the Authority following the Applicants’ receipt of the Authority’s “Practice Direction for Applicants, Representatives and Authorised Recipients”: CB210—CB214.  The Agent’s submissions occupied some 5 pages: CB218 and following.  Page 1 dealt with some legal issues. At the top of page 2 the Agent included a heading “Submissions on behalf of the applicant as per his instructions”. Directly under that heading, the Agent’s submissions accurately set out some of the First Applicant’s personal circumstances, namely that:

    (a)The First Applicant had joined the Liberation Tigers of Tamil Eelam (LTTE) in 1991.  In error, the Agent submitted that the First Applicant was a  LTTE member until 1998 - he claimed only to have been a member for 4  months;

    (b)He had been taken to the war front.  His role was to dig bunkers and deliver food and water to the LTTE cadres who were fighting (CB126, [14]);

    (c)He did tailoring work for the LTTE (CB126, [16]);

    (d)Towards the end of 1997 he was asked to join the LTTE as a combatant (CB126, [17]);

    (e)He feared for his life and in 1998 he fled to India as a refugee (CB126-127, [14], [21] -22]); 

    (f)His father-in-law worked for the LTTE and was later killed by the Sri Lankan Army in 2005 (CB126, [1]);

    (g)His wife’s brother had been harassed by the army (CB126, [20]);

    (h)He was the subject of the Department biodata leak (CB49); and

    (i)He had a psychiatric condition and he had provided a psychiatrist’s report which diagnosed him as suffering from PTSD and depression (CB179).

11. To the extent of those matters itemised above (with the exception of the noted error that the First Applicant was a LTTE member until 1998), the Agent’s submissions accurately reflected matters that the First Applicant had raised with the Delegate by way of a signed statement attached to his Visa application and by way of some other material.

12. The Agent’s submissions (pages, 3-4 at CB219—220) then traversed substantial general information as to the situation in Sri Lanka (paras. [1]– [42]). As the Applicants’ counsel correctly pointed out there were some limited references to personal matters at paragraphs [17] and [25]. Those references to personal information were inaccurate. At [17] (CB221) the Agent submitted that the Delegate had failed to consider that the First Applicant was not able to relocate within Sri Lanka. No issue as to relocation had arisen before the Delegate. The error set out in paragraph [25] of the Agent’s submissions is dealt with below.

13. With particular relevance to the current Application in this Court, the Agent’s submissions to the Authority also contained the following new “claims” which had not been before the Delegate as to the First Applicant:

    (a)“[…] He had and still has insider information on the way the police force and its human rights or rather lack of human rights practices” [sic] (at CB221 [25]);

    (b)“the applicant….  is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA” (at CB223 [42]); and

    (c)“His brother who was arrested alongside him has successfully sought asylum in Canada” (at CB223 [42]);

14. The First Applicant had not made these claims (or claims bearing any similarity to these claims) before the Delegate.  It is now common ground that these claims were not in fact about the First Applicant’s personal circumstances but concerned some other unknown person.

15. On 28 November 2017 the Authority affirmed the decision of the Delegate not to grant the Applicants the Visa.  In its Decision and Reasons the Authority expressly referred to the Agent’s Submissions it had received on 22 May 2017. The most important passages for the purposes of this judicial review Application are at [5] and [6] of the Authority’s reasons.

16. At [5] the Authority wrote as follows:

    5. In the submission to the IAA, the applicant’s representative refers to the following claims that were not previously before the delegate being that he:

    a. was a member of the LTTE from 1991 until 1998

    b. holds insider information on the Sri Lankan police force and its human rights practices

    c. is suspected of a crime

    d. has been arrested and detained and sexually abused by the Sri Lankan army

    e. was arrested alongside his brother who has successfully sought asylum in Canada,    and

    f. is perceived as a traitor due to having sought asylum in Australia.

17. In its reasons the Authority described these matters as “new claims” [CB231] and wrote the following at [6]:

    The new claims significantly differ from those put forward by the applicant in his Visa application and appear to have no bearing on those claims presented to the delegate in the visa interview. The new claims relate to events that predate the delegate’s decision and the applicant has not provided any reason as to why this information was not provided to the delegate before the decision was made, or why, in the circumstances, it may be regarded as credible personal information. The applicant has not satisfied me that these new claims represent credible personal information or could not have been provided to the delegate prior to their decision. Considering the totality of the applicant’s circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.

    [Emphasis added]

18. Having noticed these claims significantly differed from what the First Applicant had presented to the Delegate, the Authority did not make any further inquiry of the Applicants (via their Agent or otherwise) as to those “new claims” to ensure that it had received the correct submissions. It is that failure to make further inquiry that underpins the claim of jurisdictional error. It is common ground that the Authority had the statutory power to make further inquiries under s. 473CD of the Migration Act 1958 (Cth) (the Act). On the face of the reasons, it does not appear whether the Authority actively considered whether to exercise its discretion to make further inquiries. As I read the Reasons, the Authority proceeded directly to characterise those matters in paras. 5(a)—(f) on the basis that they constituted “new information” (as defined in Part 7AA of the Act) and, as it was not satisfied that there were “exceptional circumstances to justify considering the new information” as required by s. 473DD of the Act, it did not consider that “new information” in its decision. The Authority put the “new information” to one side. It put those matters to one side completely in the sense that it also did not rely on the fact that new and significantly different information had now been presented as relevant to the First Applicant’s credit. I find what occurred to be as the First Respondent put it in the written outline, the Authority proceeded by “setting to one side the incorrect information and considering the balance of the submission, without getting further information.”

19. Having put the “new information” to one side, in its Reasons the Authority surveyed the material it had received from the Minister under s. 473DB of the Act. The Authority affirmed the Delegate’s decision. Its conclusion at is as follows (CB239 [48]):

    In sum, the applicant is a male Hindu Tamil from the Jaffna District in the Northern Province of Sri Lanka, aged 43 years. In 1991 he joined the LTTE for a period of four months during which time he assisted to dig bunkers and transport food and water to the fighting cadres. From 1996 until 1998, while he worked as a tailor in Mallavi, he was compelled to assist the LTTE by undertaking tailoring work for them and delivering food and medicines from LTTE camps to the front line. In 1998, he departed Sri Lanka illegally and travelled by boat to India, where he remained as a refugee. While in India, he married and has two children. At the end of the civil conflict in Sri Lanka, the applicant participated in protest activity organised within the refugee camp. His son, GK, who is aged 11 years travelled with the applicant by boat from India to Australia in August 2012. The applicant’s wife and daughter remain in India, however, other members of the applicant’s family, such as his elder sister with whom he is in contact, resides in Jaffna. In February 2014, the Department of Immigration and Border Protection inadvertently released personal information about the applicant.  Noting the applicant’s history and profile, and having regard to the country information about the political and security situation in Sri Lanka, I am not satisfied that he faces a real chance of serious harm now or in the reasonably foreseeable future.

    JUDICIAL REVIEW APPLICATION

20. The Application presses 1 ground as follows:

    1. The IAA unreasonably concluded the review without contacting the applicants or their representative to ensure that it had received the correct submissions in support of the applicants’ case.

    Particulars

    (a)   The IAA had received submissions from the applicants’ representative that included multiple factual claims that plainly had nothing to do with the applicants’ case.

    (b)   The IAA noticed that the factual claims bore no resemblance to the applicants’ case.

    (c)   The same IAA reviewer had recently received submissions from the same representative in a different review that made the same glaring factual claims that had nothing to do with the applicant’s case.

    (d)   Rather than taking the simple step of contacting the applicants’ representative to obtain correct submissions about the applicants, the IAA proceeded with the review and treated the obviously incorrect information as if it were merely a late claim.

    CONSIDERATION

21. As developed in submissions, the Applicant’s case was that the Authority’s reviewer, having noticed those significant differences between the Applicants’ claims before the Delegate and the “new information” it itemised at paragraph 5(a)—(f) of its reasons, it was legally unreasonable of the Authority not then to make further inquiries of the Applicants (or their representative) to ensure that it had received the correct submissions. This was particularly so in circumstances in which under Part 7AA of the Act the submissions represented the only opportunity that the Applicants would have to provide new information and the consequences of refusal of the application for a protection visa could put the Applicants’ lives at risk.

22. As set out above, the Respondent submitted that the Court should find that the Authority acted reasonably in setting to one side the incorrect information and considering the balance of the submission, without getting further information.

    Was the Authority’s failure to make further inquiries legally unreasonable?

23. Whether the Authority’s failure to make further inquiries was legally unreasonable must be considered in in the context of the statutory scheme, in this case by reference to the guidance of the High Court’s decision in DUA16 and CHK16, and by reference to what the Authority actually did.

    The statutory scheme - Part 7AA, Subdivision C of the Act

24. The statutory scheme established in Part 7AA of the Act provides a default position that the Authority will review decisions “on the papers”: see heading to s. 473DB of the Act. Subdivision C, titled “Additional information”, grants the Authority a discretion as to “Getting new information” in accordance with s. 473DC of the Act. “New information” is defined by reference to “any documents or information”: s. 473DC(1)(a); s. 473BB of the Act. The Authority has no duty to get new information. Section 473DC(2) of the Act provides that the “Authority does not have a duty to get, request or accept, any new information”. Section 473DD(a) of the Act restricts the circumstances in which “new information” may be considered. It relevantly provides that the Authority “must not consider any new information unless the Authority is satisfied that there are exceptional circumstances to justify considering the new information”. Under s. 473FB, the President had issued a practice direction which (among other matters) set out procedures to be followed by persons giving new information to the Authority in writing or at interview: CB210 – CB217. It prescribed that any submission “should identify and address the issues you want us to consider in our review” and should not be longer than 5 pages: at [21] (CB212). It provided:

    “20.     For the purposes of the review, you may provide a written submission on the following:

    ·why you disagree with the decision of the Department

    ·any claim or matter that you presented to the Department that was overlooked.”

    DUA16 and CHK16

25. The unanimous decision of the High Court in DUA16 and CHK16 (although not strictly determinative because whether the Authority’s actions were legally unreasonable must always be a fact specific inquiry) provides very significant guidance because it involved the same migration agent engaged in the same modus operandi of using pro forma submissions before the Authority.  In DUA16andCHK16, it was common ground that the migration agent had acted fraudulently because she concealed from her clients that she intended to use a pro forma submission on their behalf in her submissions to the Authority.  The High Court observed that: “the agent acted fraudulently in up to 40 cases including in the cases of CHK16 and DUA16”: at [1] (emphasis added). The same migration agent acted for DUA16 and CHK16 as acted for the Applicants before the Authority in this case.  That is, the Applicants in this case were among those 40 cases whose matters have been affected by the conduct of this migration agent.  Further, the question the High Court was called upon to decide in DUA16and CHK16 was whether it was legally unreasonable for the Authority not to make further inquiries having received pro forma submissions from the same agent as to two visa applicants:  DUA16 and CHK16.   That is, the same jurisdictional error was at issue as in this case.

26. In DUA16 and CHK16, the High Court found that it was necessary to consider the specific facts as to what the migration agent had done in the particular case of each visa applicant.  Although the migration agent’s submissions to the Authority for each of DUA16 and CHK16, had built upon a template (as was apparently done for the current Applicants) the Agent’s submissions were not identical as to DUA16 and CHK16.  The inquiry as to whether there was jurisdictional error was fact specific. The differences between the individual circumstances of DUA16 and CHK16 mattered, because a close examination of the submissions made for each of them presented different circumstances to the Authority as the decision-maker.  In the end-result, the High Court decided that it was legally unreasonable for the Authority as the decision-maker not to make further inquiries having received the submissions it did for CHK16, but it was not legally unreasonable for the Authority not to make further inquiries as to DUA16.  The administrative decision-maker’s decision was vitiated by error in the case of CHK16 but not in the case of DUA16.

    CHK16

27. At [7], the High Court referred to the Agent’s submissions to the Authority as to CHK16 in the following terms:

    The submissions were slightly more than four pages. They bore the applicant’s name and said that they were the product of his instructions. But the entirety of the personal detail in the submissions concerned a different person

    [Emphasis added]

1. The High Court concluded at [28] that the “circumstances of CHK16’s case are extreme”. Further, “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” (emphasis added). The High Court concluded at [29] that there was legal unreasonableness in the failure by the Authority to get new information by requesting the correct submissions pursuant to s. 473DC of the Act. The High Court also observed that the legal unreasonableness was “plain” when the “alternative approach” of taking the “simple route of asking for the correct submissions” was considered: at [29]. The matter was remitted to the Authority to be determined according to law.

   DUA16

2. At [34], the High Court held that “DUA16’s case is different.” For DUA16, “the agent prepared a 4-page submission in support of DUA16’s application to the Authority by making amendments to a template document”: at [11]. The High Court noted that the migration agent’s submissions accurately referred to some of DUA16’s personal circumstances: at [12]. The High Court found that:

   […] two paragraphs of the submissions contained apparently erroneous material. One paragraph said that that the applicant had been arrested and detained and he has been persecuted by way of sexual abuse by the SLA. His brother who was arrested along side him has successfully sought asylum in Canada.

3. It is apparent that in DUA16’s case the migration agent had inserted broadly similar (but not exactly the same) erroneous material in her submissions to the Authority for DUA16 as she included in the Applicants’ submission to the Authority in this case: namely, claims the  relevant applicant had suffered persecution by way of sexual abuse by the SLA and a brother had been arrested alongside him and successfully sought asylum in Canada (claims which in fact had nothing to do with the Applicants).

4. As to DUA16’s case, the High Court concluded at [34] that:

   The conclusion that the Authority reasonably drew from the submissions with which it was presented, and by having regard to the review material, was that a small amount of the information had been included by mistake. The Authority disregarded these errors and, moreover, pointed out that the requirements in s 473DD of the Migration Act for consideration of new information had not been met. The statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions. It was reasonable for the Authority to disregard that information and to explain, in the alternative, why the information could not be considered even if it had not been included by mistake.

   [Emphasis added]

   A failure to make further inquiries may be legally unreasonable

5. In DUA16 and CHK16, the High Court (at [28]) referred to its earlier decision in Minister for Immigration And Citizenship v. SZIAI (2009) 83 AJLR 1123; [2009] HCA 39 where it had held as a matter of general principle:

   [20] 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.

6. Further, the High Court explained that “a requirement of legal unreasonableness in the exercise of the decision-maker’s power is derived by implication from the statute” and “whether the implied requirements of legal unreasonableness have been satisfied requires a close focus on the particular exercise of the statutory power”: DUA16 at [26]. It follows that while the actual conclusions in DUA16 and CHK16 can provide some assistance in determining future cases such as this one, an evaluation of whether an administrative decision maker’s decision is unreasonable is always fact and context specific.

   This case

7. In the Applicants’ submission, the Authority’s reviewer having noticed the “new information” in the Agent’s submissions which she carefully itemised at paragraph 5(a)–(f) of her reasons and having observed that new information significantly differed from matters “put forward” to the Delegate, it was legally unreasonable for the decision-maker not to take a further step and contact the Applicants (or their representative) to ensure that it (the Authority) had received the correct submissions.   Adopting such course by making further inquiries was a simple matter and any decision as to a protection visa was of vital importance to the Applicants.  Put slightly differently, given the submissions the Authority had received and the irregularities it had noticed about them, no reasonable decision-maker in the position of the Authority’s reviewer would have failed to make further inquiries.

8. The Applicant’s counsel in his reference to the submissions the Agent filed with the Authority [CB218 – CB223] characterised those matters the agent included at page 2 [CB219] as merely a repetition of claims made to the Department to be differentiated from submissions made in response to the invitation in the Practice Direction.  He submitted the remainder of the document was the "submissions” part of the document [CB218 – CB223] and, in its entirety, it related to a different person.  In my view, the Agent’s 5-page submission needs to be read as a whole.  Read as a whole, the submissions contained substantial accurate information as to the Applicants [CB219] but also the errors at paragraphs [17], [25] (CB221) and [42] (CB223):

9. In my opinion, having regard to the High Court’s guidance in DUA16, the Authority’s failure to make further inquiries in this case was not legally unreasonable for the reasons below.

10. There was a very close resemblance between the circumstances of DUA16 and the current Applicants. There was a contrast between the circumstances of the current Applicants and CHK16.  In particular, I note the following.

11. As was the case with DUA16, as to the current Applicants the Agent traversed in her submissions substantial accurate personal information as to the Applicants as set out in paragraphs 10(a)—(i) above. As a result, in any consideration of whether to make further inquiries the Authority had significant personal information as to the Applicants for the purposes of its review. 

12. The erroneous information as to the Applicants included in the submissions in this case which appeared at paras. [17], [25] and [42] of the Agent’s Submissions (and to which I have referred to at paras 12 and 13 above) was strikingly similar to the erroneous information which found its way into the Agent’s submissions in DUA16’s case.   It referred to at least two of the very same facts: namely, “sexual abuse by the SLA” and a “brother who was arrested alongside him [and] has successfully sought asylum in Canada”.  In DUA16’s case, the High Court noted the “accurate references” and referred to the “two paragraphs” of erroneous material (at [12]). The High Court characterised those 2 paragraphs as a “small amount of information [which] had been included by mistake” at [34]. The High Court found that there was no jurisdictional error in the Authority disregarding “these errors” (at [34]). The High Court further decided that it was reasonable for the Authority “in the alternative” to explain why that information could not be considered because of s. 473DD of the Act. It inheres in the High Court’s analysis at [34] as to DUA16 that it was not legally unreasonable for the Authority not to make further inquiries. 

13. I can see no material difference between the facts and matters which set the context for the exercise of the statutory power in DUA16 and the current case. 

14. In contrast, in CHK16’s case, “the entirety of the personal detail in the submissions concerned a different person” (see High Court at [7]) made it legally unreasonable not to make further inquiries. As I have set out (in contrast to CHK16) in this case substantial personal detail in the agent’s submissions was accurate as to the Applicants’ personal circumstances.

    The extension to the Applicants’ case

15. The Applicants made a further submission as to why it was legally unreasonable for the Authority not to make further inquiries because, it was submitted, the Authority was “on notice” that these submissions were not submissions about the Applicants’ review, the Authority having received and read substantially the same submissions on a previous review.

16. On 1 August 2017, that is, about 4 months before she delivered her reasons in this case on 28 November 2017, the same reviewer at the Authority had decided another matter in which the same Agent had put submissions on behalf of another client.  Evidence of the Agent’s submissions in that earlier case was tendered in this Court. [1]   A number (but not all) of those errors set out at para. [13] above were matters which also appeared in the Agent’s submissions in the earlier case.[2]   The Applicants’ counsel advanced submissions on the basis that the earlier decision by the same reviewer was “another layer” of the legal unreasonableness of the Authority’s decision not to contact the Applicants or their representative to ensure that it had received the correct submissions in this case because the particular reviewer at the Authority was “on notice” of this Agent’s practices because of the earlier case.

    [1] See the affidavits of Ms Amy Faram, lawyer for the Applicants, sworn on 23 January 2023 (Ex A1) and Ms Jolanta Kowalewska, lawyer for the First Respondent sworn on 2 February 2023 (Ex R1).

    [2] Affidavit of Ms Amy Faram.

17. I do not accept that the reviewer was “on notice”.  There are too many unknown factors as to the earlier case.  There was a significant lapse of time, 4 months, between the two matters.   I do not have any evidence as to the workload of reviewers at the Authority and whether a heavy workload was (or was not) likely to have affected whether this reviewer remembered the earlier submissions.   The context of the decision-making was different.  As it happened in the earlier case, the reviewer had no need substantively to determine that matter because the applicant had left Australia before the review was finalised, and the review was able to be disposed of in a summary manner.[3]  I am unable to draw an inference one way or the other that the reviewer in fact read the Agent’s submission in the earlier matter and, if she did read it, whether she recalled it 4 months later. 

    [3] See Att.1 to the Affidavit of Ms. Kowalewska.

18. As to the particulars of the Applicants’ grounds of review which ground the claim of legal unreasonableness, in my opinion, the particulars at (a) and (b) [namely, that there were factual claims that had nothing to do with the Applicants’ case] do not acknowledge the fact that the Authority had received submissions from the Agent that set out substantial accurate material as to the Applicants’ personal circumstances (see paras. 10(a) –(i) above).  As to (c), I do not accept that the earlier application put the Authority’s reviewer on notice.  As to (d), whilst I accept that a different reviewer may have taken the “simple step of contacting the applicants’ representative”, guided by the High Court’s analysis in DUA16, I find that it was not legally unreasonable for the Authority not to do so.

19. Finally, I note that in DUA16, at [34] the High Court also noted that the “statutory context and high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in the submissions.” As to the “statutory context” usually the Authority is to conduct the review “on the papers” pursuant to s. 473DB of the Act and new information must not be considered absent exceptional circumstances pursuant to s. 473DD of the Act. There is no duty to seek further information. This “statutory context” tends to suggest that a failure to seek further information will rarely have the character of being legally unreasonable. The “extreme” case of CHK16 was one example in which a failure to make further inquiries was legally unreasonable. As to the well-known “high threshold of legal unreasonableness”, although one might disagree (even strongly) with the decision-maker’s approach in not making further inquiries given the submissions it had received it is insufficient to establish legal unreasonableness that a different decision-maker may have adopted another course.  In all the circumstances, and in particular having regard to the guidance provided by the High Court’s analysis in DUA16, in my view the Authority’s approach of setting to one side the incorrect information and considering the balance of the submission without getting further information was not legally unreasonable.

    CONCLUSION

20. The Application is therefore dismissed.

21. The Applicants are to pay the First Respondent’s costs in a sum to be fixed if not agreed.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       9 March 2023