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Minister for Home Affairs v DUA16

Minister for Home Affairs v DUA16

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, KEANE, GORDON AND EDELMAN JJ
Matter No M57/2020
MINISTER FOR HOME AFFAIRS  APPELLANT
AND
DUA16 & ANOR  RESPONDENTS
Matter No M58/2020
MINISTER FOR HOME AFFAIRS  APPELLANT
AND
CHK16 & ANOR  RESPONDENTS
Minister for Home Affairs v DUA16
Minister for Home Affairs v CHK16
[2020] HCA 46
Date of Hearing: 14 October 2020
Date of Judgment: 9 December 2020
M57/2020 & M58/2020
ORDER
Matter No M57/2020
1.Appeal allowed.
2. Save as to costs, set aside the orders of the Full Court of the Federal Court of Australia made on 10 December 2019 and, in their place, order that:
(a) the appeal be allowed; and

(b) orders 1 and 2 of the orders of the Federal Circuit Court of Australia made on 30 April 2019 be set aside and, in their place, it be ordered that the application be dismissed.

Matter No M58/2020
Appeal dismissed.

On appeal from the Federal Court of Australia
Representation
G R Kennett SC with N M Wood for the appellant in both matters (instructed by Clayton Utz)
G A Costello SC and A N P McBeth for the first respondent in both matters (instructed by Clothier Anderson Immigration Lawyers)
Submitting appearance for the second respondent in both matters
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

The Immigration Assessment Authority ("the Authority") has a Practice Direction inviting submissions from applicants for asylum on matters including whether there were any errors in a refusal of asylum by a delegate of the Minister. CHK16 and DUA16 paid a registered migration agent to provide submissions on their behalf. It was found, and it is now common ground, that the agent's conduct was fraudulent because it consisted of her concealing from her clients that she intended to use a pro forma submission with the belief that if she disclosed that to her clients they would not have been prepared to pay for her professional services. The agent acted fraudulently in up to 40 cases including in the cases of CHK16 and DUA16.
In the case of CHK16, the agent, acting fraudulently, provided submissions where the entirety of the personal circumstances concerned the wrong person. The Authority was unaware of the agent's fraud. The Authority noticed that the submissions concerned the wrong person yet did not seek to obtain the correct submissions and any new information about the correct applicant. Instead, it had regard to the submissions concerning generic information and legal issues but disregarded the information concerning the personal circumstances of the wrong person.
In the case of DUA16, the agent, again acting fraudulently, provided submissions that contained information relevant to DUA16's application and some information relevant to a different applicant. The Authority, constituted by a different member and again unaware of the fraud, concluded that those latter references had been included by mistake.
In each case, a majority of the Full Court of the Federal Court of Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] HCA 46
Decision Date: 9 December 2020

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Minister for Home Affairs concerning a protection visa application. The dispute arose from fraudulent submissions provided by a registered migration agent to the Immigration Assessment Authority (IAA). These submissions contained personal information belonging to a different individual, and while the IAA was unaware of the fraud, it recognised that some information erroneously related to another person.

The central legal issues before the High Court were whether the migration agent's fraud vitiated the IAA's review process, whether the fraud adversely impacted the exercise of the IAA's duties, functions, or powers, and whether the IAA's failure to seek corrected submissions containing potentially new information was legally unreasonable.

The High Court reasoned that the IAA's decision was not legally unreasonable. The Authority, presented with the submissions, reasonably concluded that a small portion of the information had been included by mistake. The IAA disregarded these erroneous details and noted that the requirements for considering new information under section 473DD of the *Migration Act 1958* (Cth) had not been met. The Court held that the statutory context and the high threshold for legal unreasonableness precluded a finding that the IAA acted unreasonably by failing to obtain new information, given its reasonable identification of errors in the submissions.

The High Court allowed the appeal in Minister for Home Affairs v DUA16. The orders of the Full Court of the Federal Court of Australia were set aside, and in their place, the appeal to that court was allowed, with the orders of the Federal Circuit Court of Australia being set aside and the application dismissed.

Orders

Orders of the court

Matter No M57/2020

1. Appeal allowed.

2. Save as to costs, set aside the orders of the Full Court of the Federal Court of Australia made on 10 December 2019 and, in their place, order that:

(a) the appeal be allowed; and

(b) orders 1 and 2 of the orders of the Federal Circuit Court of Australia made on 30 April 2019 be set aside and, in their place, it be ordered that the application be dismissed.

Matter No M58/2020

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ (dissent)

DUA16's case is different. In DUA16's case it was not legally unreasonable for the Authority to fail to exercise either its powers under s 473DC to get new information or its powers in the general conduct of the review to get new submissions. The conclusion that the Authority reasonably drew from the submissions with which it was presented, and by having regard to the review material, was that a small amount of the information had been included by mistake. The Authority disregarded these errors and, moreover, pointed out that the requirements in s 473DD of the Migration Act for consideration of new information had not been met. The statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions. It was reasonable for the Authority to disregard that information and to explain, in the alternative, why the information could not be considered even if it had not been included by mistake. Conclusion and orders Special leave was granted in each of these appeals subject to the Minister's undertaking to pay the reasonable costs of the first respondent in each of the applications for special leave and the appeals, and not to disturb the costs orders below. In Minister for Home Affairs v CHK16, orders should be made dismissing the appeal. In Minister for Home Affairs v DUA16, orders should be made as follows:1. Appeal allowed.2. Save as to costs, set aside the orders of the Full Court of the Federal Court of Australia made on 10 December 2019 and, in their place, order that: (a) the appeal be allowed; and(b) orders 1 and 2 of the orders of the Federal Circuit Court of Australia made on 30 April 2019 be set aside and, in their place, it be ordered that the application be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.