Minister for Home Affairs v DUA16

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FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v DUA16 [2019] FCAFC 221

Appeal from: DUA16 v Minister for Immigration and CHK16 v Minister for Immigration [2019] FCCA 1128
File numbers: VID 540 of 2019
VID 542 of 2019
Judges: GRIFFITHS, MORTIMER AND WHEELAHAN  JJ
Date of judgment: 10 December 2019
Catchwords: MIGRATION – appeal from the Federal Circuit Court – whether the primary judge erred in concluding that decisions of the Immigration Assessment Authority were vitiated due to fraudulent conduct of respondents’ representative –– primary judge’s characterisation of the representative’s conduct as ‘reckless indifference’ an implicit finding of fraud – respondents’ representative’s fraudulent conduct stultified the IAA’s function and vitiated the decisions – IAA was misled as to the factual nature of the respondents’ claims and did not seek alternative information from the respondents – primary judge’s reasoning adequately explained – appeals dismissed with costs.
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act1958 (Cth) ss 281, 425, 426A, 473BA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473FA, 473FB, 473GA, 473GB and 501CA

Migration Regulations 1994 (Cth)
Cases cited:

ALR17 v Minister for Home Affairs [2019] FCAFC 182

BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378

Cain v Glass (No 2) (1985) 3 NSWLR 230

Cassell & Co Ltd v Broome [1972] AC 1027

COA16 v Minister for Immigration and Border Protection [2018] FCA 475

COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; 259 FCR 1

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175

DJB16 v Minister for Immigration and Border Protection [2019] FCA 1161

DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146

DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665

EUW17 v Minister for Immigration and Border Protection [2019] FCA 744

GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398

Jama v Minister for Immigration and Multicultural Affairs [2000] FCA 524; 61 ALD 387

Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53

Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531

Leung v Minister for Immigration and Multicultural Affairs [1997] FCA 1313; 79 FCR 400

Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 162 ALD 427

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429

Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600

Plaintiff S157/2002 v The Commonwealth [2003]…

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Details
Case
[2019] FCAFC 221
Decision Date

CaseChat Overview and Summary

The case of Minister for Home Affairs v DUA16 involved an appeal against decisions of the Federal Circuit and Family Court of Australia, which had quashed decisions of the Immigration Assessment Authority (IAA). The applicants, DUA16 and others, sought a review of decisions made by the IAA concerning their visa applications. The Minister for Home Affairs appealed against the decisions of the FCCA, arguing that the IAA's decisions should not have been quashed due to the fraudulent conduct of the applicants' representative, Ms Rajasekaram. The central issue in the appeal was whether the fraudulent conduct of the representative had stultified the IAA's function, thereby vitiating its decisions.

The court had to determine whether the primary judge's characterisation of Ms Rajasekaram's conduct as 'reckless indifference' constituted an implicit finding of fraud, and if so, whether this fraudulent conduct had indeed stultified the IAA's function and vitiated its decisions. The court needed to examine the statutory framework under Pt 7AA of the Migration Act 1958 (Cth) and compare it with the High Court's decision in SZFDE v Minister for Immigration and Citizenship, which dealt with fraudulent conduct in the context of a review by the Refugee Review Tribunal. The court also had to consider whether the IAA was misled by the fraudulent conduct to such an extent that it did not seek alternative information from the applicants.

The court found that the primary judge's reasoning was adequately explained and upheld the primary judge's conclusion that Ms Rajasekaram's conduct amounted to fraud. The court held that the fraudulent conduct of the representative had stultified the IAA's function and vitiated its decisions, as the IAA was misled about the factual nature of the applicants' claims and failed to seek alternative information. The court concluded that the Minister's appeals should be dismissed with costs.

The court ordered that the appeals be dismissed with costs, as agreed or taxed. The court also noted that the issue of costs in the FCCA remained outstanding and was a matter for the FCCA to finalise if the parties so wished. The decisions of the FCCA were set aside, and the matters were remitted to the IAA for rehearing according to law.

Orders

Orders of the court

1. The appeal be dismissed with costs, as agreed or taxed.

2. The amended notice of contention be upheld in part.

THE COURT NOTES THAT:

3. The issue of costs in the Federal Circuit Court of Australia (FCCA) remains outstanding. It is a matter for the FCCA to finalise the question of costs in those proceedings if the parties so wish.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 5 September 2016, DUA16 was informed that his matter had been referred to the IAA on that day. The Department’s letter stated that it was important that the IAA be advised in writing if DUA16 wished to appoint a person to receive correspondence on his behalf or to act as his representative. He was provided with standard information regarding the IAA’s operations, including copies of an information sheet entitled “What you need to know about the Immigration Assessment Authority (the Facts Sheet) and a Practice Direction made under s 473FB of the Migration Act1958 (Cth) (Act). By a form dated 27 August 2016, which was attached to an email dated 8 September 2016 from Ms Rajasekaram to the IAA, DUA16 advised the IAA that he had appointed Ms Rajasekaram as his representative and authorised recipient. The notification of appointment was accompanied by a written submission prepared on behalf of DUA16 by Ms Rajasekaram. The submission commences with an explicit statement that: “The applicant seeking review has instructed as follows…”. The submission, which is a little more than four pages in length, in fact says little regarding DUA16’s personal circumstances. It briefly states that adequate consideration had not been given to the applicant as a failed asylum seeker or to the fact that he had lost his parents in the war and one of his brothers was still missing. These matters broadly and accurately reflect DUA16’s personal circumstances. That is to be contrasted with the statements which appear later in the submission that DUA16 was “perceived to belong to the social group the LTTE and is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA” and that his “brother who was arrested along side (sic) him has successfully sought asylum in Canada”. At [38] the submissions stated that:The decision maker has failed to consider the personal and attended (sic) circumstances of the applicant while reaching a decision. The latest UNHCR guidelines specifically lists media personalities and ex-police men (sic) as “at risk profiles” (the applicant belongs to both groups)…None of these statements reflects DUA16’s personal circumstances or claims. They appear to relate to another referred applicant. Extensive supporting material, in the nature of country information, was also provided by DUA16’s representative. Viewed overall, the submission principally dealt at a generic level about the risk of persecution and harm by Sri Lankan asylum seekers generally. By an email dated 5 December 2016 addressed to Ms Rajasekaram, the IAA advised that it had affirmed the delegate’s decision. A copy of its reasons dated 2 December 2016 was also provided. The reasons refer to the submission received by the IAA, as well as the country information which had been provided by the representative. The IAA said that the country information reports predated the delegate’s decision and that there were no exceptional circumstances which justified the material being considered by it under s 473DD.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the particular facts and circumstances of these matters, there was no legal obligation on the IAA to do what the respondents now contend. Conclusion For these reasons, the appeals should be upheld and the amended notices of contention dismissed. The Minister asked for an opportunity to file short written submissions on the question of relief if the Court identified appealable error. It was clarified in oral address, however, that this opportunity was sought only if the Minister succeeded on ground 3 of his appeal. In the circumstances, I consider that the Court should proceed to make orders as outlined above, together with an order that the respondents pay the Minister’s costs of and incidental to the appeals. The orders of the FCCA should be set aside. It is noted that the FCCA made no order as to the costs of the proceedings before it. It remains a matter for the FCCA to finalise the question of costs of those proceedings if the parties so wish. I have had the advantage of reading the draft reasons for judgment of Griffiths J. His Honour’s reasons relieve me of the need to set out the factual and procedural background to the appeals, and the parties’ arguments. I gratefully adopt what his Honour has set out about those matters. I respectfully disagree with his Honour on the outcome of the appeal on ground two. I otherwise agree with his Honour’s conclusions about appeal grounds one and three, and about the respondents’ amended notices of contention on issue one. I also respectfully agree with Griffiths J’s conclusion, and reasons, for not upholding issue three of the amended notices of contention. That said, some of the respondents’ submissions on issue three are of relevance to my reasoning on ground two of the appeal. As Griffiths J points out, issue two of the amended notices of contention is directed at the same point as that advanced to resist the Minister’s appeal ground two. Given that my reasoning differs somewhat from that of the primary judge, I would also uphold issue two of the amended notices of contention. The point of substance which arises on ground two of the appeal in each proceeding is how the principles set out by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 are to be applied in the context of a review by the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth). In particular, and the matter which causes me to reach a different conclusion from Griffiths J, in what circumstances can it be said that the fraudulent conduct of the representative of a visa applicant in how the visa applicant’s case is put to the IAA stultifies, disables or subverts the imperative function of the IAA to “review” the decision of the Minister’s delegate?GROUND TWO OF THE APPEALMs Rajasekaram’s fraud I agree with the observations of Griffiths J at [38]-[53], in relation to findings of fraud involving the exercise of public power. I also agree with his Honour’s conclusion at [54] that in the present cases, although the primary judge did not make an explicit finding of fraud, that is clearly what his Honour had in mind, by reference to the concept of recklessness: see also Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 at [129]-[152] (Murphy, Mortimer and O’Callaghan JJ).

Ratio Decidendi

Legal Principle Established

It was for these reasons that the FCCA quashed the IAA’s decisions in both matters and remitted the matters to the IAA to rehear according to law. Consideration and determination(a) The appeals – fraud (ground 1) A central issue in both appeals relates to the circumstances in which the conduct of a representative of a referred applicant in Pt 7AA proceedings may vitiate the IAA’s decision. The parties were agreed that the leading authority is SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189. It must be emphasised at the outset, however, that the issue of the legal significance of fraudulent conduct on the part of a representative arose there, not in the context of a Pt 7AA referral, but rather in the context of a review by the then Refugee Review Tribunal (RRT) under Pt 7 of the Act, where s 425(1) was significant. Nor was Pt 7AA relevant in several Full Court decisions concerning fraud in other statutory administrative review contexts, such as Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398; Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1 and Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53. That is not to say that some general observations in those cases relating to fraud in a public law context are not relevant to these appeals. It is important, however, not to lose sight of the fact that the statutory framework under Pt 7AA is different from those which were considered in these authorities. The High Court held in SZFDE that the conduct of a person (described as a “rogue”), who wrongly claimed to be entitled to practise as a solicitor and migration agent, had the effect that the RRT’s decision was vitiated and should be set aside. This was because the fraudulent conduct had the effect of subverting or stultifying imperative statutory functions of the RRT, specifically the natural justice provisions in Div 4 of Pt 7 and, in particular, ss 425 and 426A. The fraudulent conduct related in part to the rogue’s wrongful claim to be entitled to practise as a solicitor and migration agent, despite the cancellation of his practising certificate and registration as a migration agent some months previously. In advising the RRT review applicants not to attend the RRT hearing, the Court found that he acted for his own self-protection and to avoid the RRT learning of his apparently unlawful conduct in providing migration advice in contravention of s 281 of the Act. Importantly, the Court emphasised at [29] that close attention had to be paid to the “nature, scope and purpose of the particular system of review by the [RRT] which the Act establishes and the place in that system of registered migration agents”. Section 425 (which obliged the RRT to invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review) was of central importance in this regard (as was also s 426A which set out the consequences of a failure to appear following an invitation under s 425). The High Court concluded at [49] that the rogue’s fraud had the immediate consequence of stultifying the operation of the legislative scheme which was intended to afford natural justice to the review applicants. That was because the RRT dismissed the review on the basis that the review applicants had not provided any further information in support of the claims for protection, despite notice from the RRT that it was unable to make a favourable decision on the material before it.