Minister for Home Affairs v DUA16 & Anor

[2020] HCATrans 164

[2020] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M57 of 2020

B e t w e e n -

MINISTER FOR HOME AFFAIRS

Appellant

and

DUA16

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Office of the Registry
  Melbourne  No M58 of 2020

B e t w e e n -

MINISTER FOR HOME AFFAIRS

Appellant

and

CHK16

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

KIEFEL CJ
BELL J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON WEDNESDAY, 14 OCTOBER 2020, AT 10.05 AM

Copyright in the High Court of Australia

____________________

MR G.R. KENNETT, SC:   May it please the Court, in both matters I appear with my learned friend, MR N.M. WOOD, for the appellant.  (instructed by Clayton Utz)

KIEFEL CJ:   We cannot hear you, Ms Costello.  No, we still cannot.  We are having a bit of a problem with your audio.  We might just have to stand down briefly while we see if that can be resolved.  The Court will adjourn shortly.

AT 10.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.14 AM:

KIEFEL CJ:   Yes, Ms Costello.  I think you were attempting to announce your appearance.

MS G.A. COSTELLO, SC:   May it please the Court, I appear with MR A.N.P. McBETH, for the first respondent in both proceedings.  (instructed by Clothier Anderson Immigration Lawyers)

KIEFEL CJ:   Thank you.  There is a submitting appearance for the second respondent.  The record will show that Justice Bell and I are sitting in Canberra; Justices Keane and Edelman in Brisbane; and Justice Gordon is physically present in Melbourne.  And I think I mentioned the submitting appearance for the second respondent.  Yes, Mr Kennett.

MR KENNETT:   Thank you, your Honour.  These two cases have unrelated but parallel facts and they were heard together, both in the Circuit Court and in the Federal Court.  The first respondent in each case used the same solicitor and migration agent in his unsuccessful visa application and in the review process by the Immigration Assessment Authority and had substantially the same experience with that agent.  And, in particular, the agent’s preparation of a submission to the Authority in each of the cases was found to be hopelessly deficient and to amount to fraud.

I will come to that in a minute but, of course, the statute here, Part 7AA of the Migration Act, does not provide the submissions to be made by a referred applicant to the Authority, but there is a practice direction issued by the President of the AAT, which your Honours will find in the respondents’ further materials, which says that a referred applicant can make a concise submission to the Authority on why he or she disagrees with the delegate’s decision and on any matter that he or she thinks was overlooked, any aspect of the claims that he or she thinks was overlooked by the delegate.  That is paragraph 20 of the practice direction.

Now, the findings that were made below about the migration agent’s conduct – I do not need to take your Honours to them but they can be seen in the core appeal book at pages 71 to 72 in the reasons of the primary judge, then at 116 to 117 in the reasons of Justice Griffiths, page 131 in the reasons of Justice Mortimer and pages 151 to 152 in the reasons of Justice Wheelahan.

We would seek to distil those findings in each case as follows.  Firstly, the agent falsely represented to her client that she proposed to make a submission to the Authority addressing his or her particular case while being aware that if the client knew the nature of what she was actually going to provide, it would not have been prepared to pay for the service that she was offering.

Secondly, she charged and accepted fees for a service on the footing that she would make a submission addressing the client’s particular case when, in fact, she was going to use a template submission with only minimal modifications.  Thirdly, in drafting and in lodging a submission to the Authority on behalf of her client, she was found to be reckless as to whether the contents of the submission were true and accurate.  Fourthly, she included in each submission at the beginning of the document a representation that the submission reflected the client’s instructions and that representation was not correct.

Now, in each case, as we would put it, the result of that conduct was a submission that said practically nothing about the client’s individual circumstances.  The submissions themselves I do not propose to go to, at least for the moment, but they are also included in the respondents’ bundle of further materials at pages 6 to 13.  The submissions, as I say, in each case said nothing or practically nothing about the client’s individual circumstances.  They did refer to a set of personal circumstances that were obviously not those of the client but some other person.  There was reference to some general country information and to the visa criteria and matters of refugee law. 

Essentially, the submissions were, if not useless to the client, then nearly useless.  They did not, however, we would submit, sabotage or undermine the clients’ cases and that proposition becomes important when I seek to compare this case with the situation in SZFDE.  The only impact of the fraudulent conduct on the Authority’s review was thus that the Authority received a submission that did little, if anything, to advance the claims of each of the first respondents. 

There was no evidence of undermining of the process beyond that, we would say.  There was no evidence, for example, of any new information – and that is a defined term in this context, of course – but there was no evidence of any information not before the delegate that either of the first respondents wished to put before the Authority and that was not put.  Nor was there any evidence of a particular argument about the delegate’s reasons that either of the first respondents wanted to advance and that was not advanced.

Further, while, as I have noted, the submission included factual claims that obviously related to a different person, the Authority’s reasons reveal it was aware of the inclusion of that material in error and put that material out of account.  That can be seen in the Tribunal’s reasons in the core appeal book, firstly at page 7 in the case of DUA16, paragraph 7, and secondly at page 22 in the case of CHK16, paragraph 5, and there is an explanation of it also in the reasons of Justice Griffiths at page 123, paragraph 75. 

The Authority in one case was satisfied, and in the other case strongly suspected that those references had been put in as a result of the agent’s error and treated them as extraneous material.  And in the alternative said that if they were not put in in error then they amounted to new information, and no case had been made under section 473DD for their inclusion.  So that on that alternative basis as well, the Authority simply put those extraneous references out of account.

There was also, as I have noted, a statement in each submission that said, “The applicant seeking review has instructed as follows”, a statement which, as denoted in the Full Court, was not true.  We would say, though, that it was obviously not true and could not and in fact did not lead the Authority astray in any way.  The inclusion of those extraneous claims which the Authority correctly perceived to be a mistake could not have been on clients’ instructions.  And it was also, we would submit, highly improbable that either of the clients had given instructions on, for example, the visa criteria or matters of law of refugee status.

Next, as to the impact of the submissions, we would say there is no basis to infer, as Justice Mortimer appears to have done in the Full Court, particularly in paragraph 154 on page 144 of the appeal book and then developed a bit more in paragraph 173 on page 148, that the Authority had any particular view about whether the first respondents had anything more to say, or nothing further to say, in support of their claims, or also does not know if that impression was held whether it was a false impression.

Also, there is no suggestion in the authorities for reasons that that weighed against them in any way – for example, no suggestion of an adverse inference as to their credibility arising from content of the submissions is apparent.

The worst, we would say, the conduct of the agent, reprehensible as it was, deprived each of the first respondents of the benefit that might have come from a coherent restatement of their claims, but we would say has a very limited impact given the statutory obligation of the Authority to reach its own view on all of the material about whether the visa criteria had been satisfied and given, of course, that the claims relevantly have already been put to and recorded by the Minister’s delegate.  The Authority here, so far as the record shows ‑ ‑ ‑

GORDON J:   Mr Kennett, can I ask a question about that.  Does that submission, consistent with the findings of the Federal Circuit Court, particularly at pages 73 and following of the core appeal book where Judge Riethmuller goes through and in effect assesses whether or not – what the position was of each of the…..a better understanding of what they could and could not do?

MR KENNETT:   It is, your Honour, we would say, in that in the case of both of the present first respondents the primary judge said that he found it difficult to reach a view about their credibility for various reasons and thus, as we would read his Honour, he was not prepared to make any very firm findings about what they did or did not instruct their agent to do or wish to do at the time that they had their consultations with her.

GORDON J:   Having regard to the findings made by the primary judge that he was persuaded that they would have sought to provide more information which in effect goes towards the second…..CHK16 but he would have taken up the opportunity to put his claim for protection on the basis of his own circumstances.

EDELMAN J:   It is the final sentence of paragraph 79 on page 75.

MR KENNETT:   That indicates in a broad way the wishes of each of the first respondents and, of course, one supposes if they had an opportunity presented to them, they would have wanted to take it.  But neither the first respondents nor their representatives – and they had been represented at all stages, of course – have put before the court anything specific, any particular piece of information which it is said they would have wanted their agent to pass on, or any particular argument which it is said they asked or wanted to ask their agent to make and which she did not make.  So, yes, we accept, of course, the findings that were there about the wishes of the two respondents, but note that they are expressed at a fairly high level of generality and there is no ‑ ‑ ‑

EDELMAN J:   Mr Kennett, can I ask you, did the Minister make any submission before the primary judge in the Federal Circuit Court that anything that either of the first respondents could have put before the IAA, or via their agent before the IAA, could not have made any difference to the outcome of the decision?

MR KENNETT:   We did not make that submission in the Full Court.  I was not involved in the Circuit Court but, hopefully, I will get a message in a moment from my junior who was.  It was not put as a materiality exercise on the part of the Minister. 

EDELMAN J:   It certainly does not appear to the primary judge to have been a submission that needed to be responded to.

MR KENNETT:   Quite so.  It would be a difficult proposition to put to say that if a submission had been formulated in a more coherent and forceful way that could not have made any difference to what the Authority ended up deciding about the case.  But what the respondent was deprived of in each case by the conduct of his adviser was, as I have said, was the benefit that he might have got from a coherent restatement of his claims.

I have characterised that as a fairly limited impact given the task of the Authority – given that it had all the material – and it has never been put that the Authority failed to consider a relevant claim or that its reasoning was flawed in some other way.  As I think I have already said, there is no basis in the material to infer that the poor quality of the submissions contributed to any adverse view about their credibility. 

So, what the first respondents were deprived of was the benefit that might have come from a better submission.  What the Authority was deprived of was the…..I suppose, that might have come from a better submission.  But decision‑makers in administrative contexts, as well as in courts, often have to labour without the best assistance that could be expected from a party.

Whether the decision of the Authority in each case was vitiated by the matters that I have referred to depends, of course, on the construction of Part 7AA of the Act and, in particular, whether a result of the fraudulent conduct was that the Authority did not carry out the review for which Part 7AA provides.  I put it in that way in the light of, firstly, what was said in SZFDE and, secondly, what was said more generally in Hossain.  May I take your Honours to SZFDE – which is tab 19 of the joint bundle of authorities – starting at page 621? 

KIEFEL CJ:   Mr Kennett, could you give the Commonwealth Law Report page numbers, or paragraph numbers, please?

MR KENNETT: Yes. The report is 232 CLR 189. I want to start with paragraph 29, if I may, which is page 200 of the report and page 632 of the bundle. At paragraph 29, the Court says that:

the present appeal should be resolved after close attention to the nature, scope and purpose of the particular system of review by the Tribunal . . . Any application of a principle that “fraud unravels everything”, requires consideration first of that which is to be “unravelled”, and second of what amounts to “fraud” –

There is then some discussion of the position of the Tribunal in that case.  To save having to come back to it later, can I note what their Honours say at paragraph 31 about:

The importance of the requirement in s 425 –

of the Act - that is the obligation to invite the review applicant to a hearing – and then at paragraph 32, making the link between section 425 and obligations of procedural fairness.  Then at paragraph 47, on page 205 of the report, their Honours refer to the way that Justice French in the Full Court in that case had identified the ultimate issue in terms of the process for which Parliament provided.  Paragraphs 48 and 49 come back to the importance of section 425 in that statutory regime and paragraph 49 notes the consequence of the conduct of the rogue in that case, and puts it in terms of:

stultifying the operation of the legislative scheme to afford natural justice –

Paragraph 51 again speaks in terms of the concomitant of the rogue’s fraud being:

the stultification of the operation of the critically important natural justice provisions –

So pausing there, it is being put in terms of frustration of the statutory scheme.  Then at paragraph 53, their Honours say that:

The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 –

and then go on to make a distinction between a case of that kind and a case where an applicant before a tribunal is hampered:

by bad or negligent advice or some other mishap –

Paragraph 53 of course starts with the observation that:

The significance of the outcome in this appeal should not be misunderstood.

We take from that that their Honours are not merely deciding the instant case and saying other cases are for another day.  We would seek to read paragraph 53 as seeking to draw relatively clear boundaries around the circumstances in which fraud by a third party undoes an administrative decision and those boundaries depend always on the terms of the statutory scheme.  That, we say, reflects a deeper principle, a principle that has…..this Court’s jurisprudence on judicial review since probably Quin’s Case 30 years ago and that is that whether a jurisdictional error has occurred is first and foremost a task of – well, firstly fact finding; but secondly and critically, statutory construction.

Justice Brennan in his very influential judgment in Quin referred to judicial review amounting to the increasingly sophisticated elaboration of applied limits on statutory power.  That is a doctrinal statement that is reflected more recently in Hossain 264 CLR 123. It is in the joint bundle of authorities at tab 9 particularly at paragraph 23 on page 132 of the report. I will not read that statement to your Honours because it is fairly recent and probably very familiar but, firstly, in paragraph 23 their Honours refer to jurisdiction as involving consideration of the – or as referring to the authority which a statute confers and that includes preconditions on the exercise of a power and conditions:

which the statute expressly or impliedly requires to be observed in or in relation to the decision‑making process ‑ 

Over the page on paragraph 24 there is a corresponding exposition of the concept of jurisdictional error as one involving:

a failure to comply with one or more statutory preconditions or conditions –

That is important because it confirms that traditional grounds of review or traditional broad statements of principle such as “fraud unravels everything” only have a more indirect application in cases of this kind.  One can see it at paragraph 28 on page 134 of the report where the joint judgment refers to:

The common law principles which inform the construction of statutes conferring decision‑making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power ‑

Procedural fairness is probably is probably the paradigm case of that.  But, in other ways as well, what one traditionally thinks of as the grounds of review are now to be understood as values that inform a construction of a statute.  Now, an aversion to fraud is probably an example of that as well but that is brought to bear because review for jurisdictional error is an exercise of statutory construction.  That aversion to fraud is brought to bear as part of construing a statute not, as it might be in an equitable case or in the older English cases about certiorari going to inferior courts, not as an overarching doctrine applied by the judges but as an aspect of the statute. 

SZFDE, we would say, is an example of the aversion to fraud being given reflection in the construction of the statute.  The statute there was construed as not conferring legal force on a decision of the RRT in a case when even though the RRT itself had not done anything wrong, the performance of one of its critical statutory functions had been disabled. 

What we seek to take from those matters is that the question in this case has to be put in terms of whether the respondent in each matter received the review for which a statute provided and not merely in the…..sense of whether the course of that review might have been affected in some way by the conduct of the agent that has been held to be fraudulent.

And that, really, I suppose, at paragraphs 20 and 21 of our learned friends’ written submissions, put the test as we would read them in that broad way, which we say does not take adequate account of the centrality in the exercise of the task of statutory construction.

And the next proposition that we will put is that, in the statutory scheme receipt, certainly consideration, of a submission from a referred person – referred applicant – is not an imperative function of the Authority or a condition imposed by the statute on the exercise of its jurisdiction.  This Court has recently grappled with this legislative scheme in M174, which is at tab 17 of the joint bundle, and also in BVD17, which is at tab 6.  So I do not propose to labour these points, but it is appropriate to go to the statute and note Part 7AA.  If your Honours are using the joint bundle of authorities, page 149 is the place to start section ‑ ‑ ‑

KIEFEL CJ:   I think you could take it, Mr Kennett, that we are either using pamphlets or we are going online.  I think, basically, pamphlets.

MR KENNETT:   Thank you, your Honour.  Section 473CC is at page 240 of the reprint that has been reproduced here in the bundle and that sets out the review ‑ or that imposes the obligation on the Authority to review a decision and indicates the decisions that the Authority can make at the end of that review.  Then, coming more directly to the present issues, on the next page, section 473DA, the effect of which was considered in BVD17, effectively excludes the general law of procedural fairness and, thus, as it was noted in BVD17 at paragraph [34], procedural fairness is the wrong lens through which to view these provisions.  There can be issues, of course, of civil compliance and issues of unreasonableness, but it is a mistake to approach these provisions on the footing that procedural fairness is an underlying value or doctrine that they embody beyond what is said in their  particular terms.

Then 473DB, which I am sure your Honours have seen before, sets out the general rule or expectation that the Authority is to conduct a review on the papers, considering the material provided by the Secretary and, ordinarily:

(a)      without accepting or requesting new information; and

(b)      without interviewing the referred applicant.

That is subject to this part and there are exceptions to it, in some cases specific exceptions.  But 473DC is a power to obtain new information which was described in paragraph 23 of M174 as “entirely facultative”.

Section 473DD is the filter through which new information that is obtained or received has to pass before it is allowed to be taken into account and its terms suggest that, if a referred applicant does provide new information to the Authority and if the Authority elects to receive it, the referred applicant has to have an opportunity under paragraph (b) to satisfy the Authority as to certain matters.  That is a specific instance where the statute contemplates and implicitly allows submissions to be made.

Then we can pass to 473DE, another specific example of where the referred applicant has an opportunity to say something to the Authority.  That is where the Authority has obtained new information that has to be provided to the referred applicant for comment.

The last provision that I would mention is on page 248 of the reprint and it is 473FB, and that is the source of the authority to make the practice direction that I referred to earlier, and I would just note the express provision in subsection (3) that non‑compliance with a direction does not vitiate the Authority’s decision.

Now, when one looks at those provisions, we would say that the contrast with SZFDE is obvious.  I have taken your Honours to the key paragraphs of that case.  Providing an oral hearing to the review applicant was absolutely central to what the RRT, as it then was, was required to do, unless the Tribunal was persuaded by those claims without the need for an oral hearing.

If that function was subverted, then the process could rightly be said to have been stultified and not to have accorded with the statute.  The conduct of the rogue in SZFDE, which was to persuade his clients not to go to the hearing when they had been invited by the Tribunal, plainly doomed their application to failure.  When the Tribunal writes to you and says, we are not persuaded by your claims and we have given you a chance to come to a hearing, if you do not go to the hearing, the consequence is easy to predict.

A consequence of that last point…..developing, about the statutory scheme here is that, even if there was cogent evidence here that the Authority’s consideration of these reviews had been influenced in some way by deficiencies in the submissions, we would not accept that, following from that, the review provided for by Part 7AA did not occur.  As we have said, every statutory task required of the IAA was performed and no necessary step – that is, no step called for by the Act – was subvert or stultified by the provision of what, in effect, was a useless submission.

We would note again what was said in SZFDE at paragraph 53, where the result of that case was said to turn:

upon the particular importance –

of the statutory scheme.  The Court then went on, in that same paragraph, to agree with the observation by Justice French in the Full Court to the effect that there were:

sound reasons of policy –

not to allow a decision to be vitiated, as it was said:

by bad or negligent advice or some other mishap –

When referring to that, we are not, of course, suggesting here that the migration agent’s conduct was near negligence.  We do not challenge the findings as to what that conduct comprised or the finding that it was fraudulent.  But, in terms of its effect on the Authority – which as we have sought to explain was not to prevent or stultify the performance of its functions – it is, in terms of its outcome, indistinguishable from bad advice or some other mishap.

So, perhaps to put that another way, when one looks at the conduct between the agent and her clients, one sees fraud.  When one looks at how that played out in terms of what the Authority received, we see nothing more than an incompetent submission which, we would say, did not lead the Authority astray in any fashion but, more fundamentally, which did not prevent the Authority from carrying out the task of review in accordance with the statute.

Those are the matters that I wanted to raise…..Can I say something briefly about the notice of contention, although, I may need to say more about that in reply.  We submit, as your Honours note, that it was not unreasonable for the Authority not to exercise such power as it had to seek out further clarification of the submissions that had been put or to contact the agent and ask what on earth was going on.  I think in our oral outline we might have put that in terms of section 473DC.  We have, in paragraph 6 of the outline, but that is something of a distraction because I do not think our friends locate the power there and 473DC, of course, relates to new information which is a distinct concept from submissions.

EDELMAN J:   Mr Kennett, if what is sought is the correct submissions or submissions that would be made on proper instructions from the client, then that would be new information, would it not?

MR KENNETT:   It would be ‑ not necessarily, your Honour.  It might contain new information.  This Court has looked at what “new information” means a couple of times recently, and most recently in Minister v CED16 94 ALJR 706. We take those decisions to indicate that information is the imparting of knowledge and information would be akin to the notion of evidence that might inform a decision rather than argument.

EDELMAN J:   Absolutely.  But the new or the proper submissions that would be provided would be capable of containing new information.

MR KENNETT:   Yes, they would.  I was not meaning to suggest ‑ ‑ ‑

KIEFEL CJ:   Mr Kennett, Justice Edelman and I do not like to interrupt you, but we appear to have – Ms Costello has dropped out.  Did you have audio, Ms Costello, while there was not an image?

MS COSTELLO:   It is okay, your Honour, my learned friend, Dr McBeth, can bring me up to speed if I am missing something for a moment.

KIEFEL CJ:   All right.  We will be having a break at 11.15, in any event, so if Mr McBeth makes a note to let you know about the exchange about new information between Justice Edelman and Mr Kennett.  Yes, Mr Kennett.

MR KENNETT:   Yes, thank you, your Honour.  I was not meaning to imply that there would be no power in the Tribunal to seek out a further submission or to invite a further submission, merely that that power might not be located entirely in 473DC.

EDELMAN J:   Yes.  Mr Kennett, where my question is really directed is that you will not have had the opportunity to consider it but this Court delivered a decision this morning in ABT17 where four members of the Court held that it was legally unreasonable for the Authority not to exercise the power in section 473DC to get new information where the Authority had doubts about a credibility finding of the delegate.  Why would it not equally be unreasonable for the Authority not to exercise the power to ask for new information where the Authority is actually satisfied that the material it has received has been received in error?

MR KENNETT:   Two reasons I think, your Honour.  First, the findings of the delegate, or at least whether one agrees or not with the findings of the delegate, is the critical issue for the Authority and if it is unsatisfied with a credibility finding it needs to come to its own view on that issue which might very well be dangerous or impossible without knowing more than is apparent from the review material.  It is different where what has been received is a submission which is something the Authority invites and something that may assist it, but not something that is in any way central to the performance of the statutory task.

GORDON J:   Can I ask a question about that, Mr Kennett?  You have a position where the Authority, as you correctly identified, seeks a submission, invites it, here has read it, in the case at least of CHK16 forms a view that it has no logical bearing or connection with the case in front of it, we know from the practice direction that if the submission filed is wrong in form, it gets possibly returned to an applicant for them to put in the right form.  Why is it not unusual for them not to use their powers at their disposal to ask the simple question, “Have you filed the right submission?”

MR KENNETT:   Because it is not the case, we would say, that these were just the wrong submissions.

GORDON J:   Well, the finding by the Authority was it had no logical bearing or…..and involved a not insignificant error.

MR KENNETT:   This is as to?

GORDON J:   CHK16.

MR KENNETT:   That is paragraph 5 of the Authority in CHK16, page 22 of the core appeal book.  That is said by reference to what the Tribunal refers to as “these references”:

contains reference to claims that appear to have no logical bearing or connection to the applicant.

That is how the paragraph opens, and then it goes on to express the view that these references are not intended to be new claims, but it was the result of an error.  That is really I think my second response to what Justice Edelman put to me, which is that it is overstating it a little bit to say that these were the wrong submissions or that the Authority was somehow on notice that these were the wrong submissions. 

EDELMAN J:   Sorry, Mr Kennett, I thought your submission began this morning with an acceptance of the fact that there was little, or perhaps in the CHK Case, nothing to specifically link the submission with the applicant?  How could it be anything other than the wrong submission, if it bore the applicant’s name but contained nothing at all to link the submission to the applicant?

MR KENNETT:   Well, they bore the applicants’ names, that is the point and they both – and this is not much but they both referred correctly to the applicants as fearing harm by reason of their Tamil ethnicity and their status as returned asylum seekers.  But these are under headings, at the start of each document, that refer to the applicant by name and in one case include what looks like some kind of file reference. 

We would say yes, they are hopeless, and yes, they include by reason of an obvious mistake some paragraphs from another submission that should have been deleted.  But that does not mean that the wrong document has been sent, and that the problem would be resolved by asking for the right document.  What it means, and what the Authority was well and truly entitled to think it meant, was that whoever drafted these documents had just done a really bad job, an unacceptably slack job ‑ - -

GORDON J:   I find that submission interesting, Mr Kennett, given the finding by the Authority, at least in relation to CHK16, that it was a not insignificant error, I mean, following on from that passage you took us to where they identify that the claims made had no logical bearing or connection.

This was not just a misdescription of either a date or a place or a missed spelling of a name or something minor, this was a finding by the Authority that what they had in front of them just, as they say, was not an insignificant error, and had nothing to do with the applicant in front of them.

MR KENNETT:   It was a finding that certainly part of the document had nothing to do with the case in front of the authority.

EDELMAN J:   That is the part of the document that described the applicant, it described the applicant as a media personality, having political opposition to the army, human rights practices, a human rights student at university, a former member of the police force and a traitor and none of that applied to this applicant on the findings of the Tribunal.

MR KENNETT:   That is right and it is, in a sense, the only part of the document that actually grapples with an individual case in any real way, is the part that does not relate to the applicant and has been included by a mistake.  That itself, though, is a relatively brief section of each document and your Honours will have seen they go on for several pages about country information and other matters.  But, given the way each document was headed and given that each document began in a true but very anodyne way by identifying the applicant correctly as a Tamil and as a failed asylum seeker, the Authority was obviously on notice that something had gone fairly wrong in the preparation of these submissions but it was not on notice, we would say, that it was just the wrong submission and that by ringing the agent you would get the right submission.  The most natural inference was that if you rang the agent you would get, if not more of the same, then maybe some further explanation about the applicant or maybe not, maybe still nothing useful.

GORDON J:   Can you explain to me how that inference is drawn on just CHK16 because we cannot put these two cases together, they were heard on different days by different reviewers, so why would that be the inference for CHK16 when they have already drawn those two connections we have identified?

MR KENNETT:   If your Honours go to the submission CHK 16, it is in our friend’s book of further materials, starting ‑ there are many page numbers on the page, but I think it is page 5 of the bundle.  It has got a bold page number in the bottom right‑hand corner.  That is the submission filed on behalf of CHK16.  When I said, “correctly identifies him as a Tamil”, I was referring to the paragraph that is numbered 1 on that page and as a “failed Tamil asylum seeker”.

Now, that does not add anything particularly useful but it is a start.  Then, there is a lot that is – and there is another reference to being a Tamil in the paragraph numbered 15 on the next page.  There is a lot that is obviously boilerplate or recycled material and one comes to the incorrect references to the circumstances of somebody else on page 7 of the document, paragraph 35 towards the bottom, and that continues over onto the next page and it also infects paragraphs 36 and 37 at the bottom of page 8 of the bundle.

It is those references on pages 7 and 8 of the bundle which we apprehend the Authority to be talking about when it refers to references to – coming back to paragraph 5 of the decision in CHK16, the Authority says that the document clearly refers to the applicant but it “contains reference to claims that appear to have no logical bearing”.

So the Authority takes it, and we would say correctly, that this is a submission that has been ostensibly put together for the applicant and filed for the applicant but that the person who put it together has recycled another document and failed to take out material that is unrelated.

EDELMAN J:   Mr Kennett, one inference that you raise is the inference that the document correctly refers to the applicant when it describes in the submissions the applicant as being a Tamil.  Could another inference not be that the reference to the Tamil ethnicity of the applicant is a reference to the same person that the submissions are describing in paragraph 35 as the person who is “opposed to the Sri Lankan government and its . . . Human rights practices” and “reading [for] a Human rights degree at the University of Colombo”?

MR KENNETT:   That is one possibility for what has occurred.  I would not suggest any inference either way as to whether the references to a Tamil are considered references to the particular applicant or just something that was correct by accident.  Why just stop the clock that is right twice a day?  One really cannot be sure either way on that question.  As the Authority reading this document, you see on page 1 a reference to the applicant by name and then two-thirds of the way down the page his ethnicity and the very, very broad outline of his claims are identified correctly.

So it was reasonable, we would say, for the Authority to infer that this was the applicant’s submissions, or the submissions prepared for him by his migration agent, and then to find that the submissions have included by mistake a not insignificant error, as the Authority says and we would not quibble with that, of some material that should have been deleted.

So that an integer of reasonableness – if the proposition is that it is unreasonable not to make some inquiry, an integer of reasonableness we would say, at least by analogy with the failure to inquire cases, of which there has been, I think, one in this Court, SZIAI, that is referred to in the submissions, one of the integers of a failure to inquire case is that there needs to be some sort of evidence that the inquiry would have produced a useful result – of which there is none here.  For the reasons I have seeking to develop, one cannot assume that an inquiry to the agent would have produced a document that was the right document.

The much stronger inference, we would say, is that it would have produced a response along the lines of, no, that is the right document that you already have – or something else altogether.  But one simply cannot assume that the inquiry postulated would have achieved a useful result.  So, for that reason, in addition to the fact that the submissions just are not an essential element of the Authority’s task and the Authority would be well and truly used to managing them, that situation does not rise to the level of unreasonableness which, as has been indicated by the Chief Justice recently, is a stringent notion.  Subject to what else I might need to say in reply, those are the Minister’s submissions on the notice of contention.  If the Court pleases.

KIEFEL CJ:   Thank you, Mr Kennett.  The Court will take its morning break.

AT 11:14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Ms Costello.

MS COSTELLO:   May it please the Court.  We will address the Court in two parts.  Part one concerns the Minister’s appeal, whether fraud stultified the decision, and I will deal with that; and part two concerns the notice of contention regarding unreasonableness, and Dr McBeth will address the Court in that respect.

You have already heard this morning my learned friend, Mr Kennett, address the Court regarding the nature of the Authority’s review and, as my learned friend submitted to your Honours, you are familiar with the nature of the review from cases such as M174 that you have considered relatively recently. 

Whilst I will not repeat the matters that have been brought to your attention already, I would just briefly reiterate that the core provisions that require your Honours’ attention in relation to this first part are section 473CC which is the review provision first of all and, secondly, section 473FC under which the President may make a practice direction as to the conduct of reviews by the Authority.  You have been taken to that provision this morning.

Here, the practice direction did provide for an applicant before the Authority to give submissions.  The function of conducting a review in this case therefore was populated in fact by something done under the practice direction.  That practice direction was something done under a section of the Act, being section 473FC.  So a clear distinction between ‑ ‑ ‑

KIEFEL CJ:   Ms Costello, that might mean that it is authorised by the Act, but it does not make it a core function, does it?

MS COSTELLO:   Your Honour, yes, I respectfully adopt your Honour’s premise that it is not a core function.  The core function that the respondents focus upon is the review function in section 473CC.  But a critical battleline has been drawn between the appellant’s argument and ours, and that is whether it is necessary to show an imperative function that has been affected by fraud, and that is what the Minister contends, or whether what we say is correct which is that it is necessary to show an effect on the process of review by the fraud.

In our submission, in looking at the statutory provisions that contextualise the case, it would be erroneous to stop looking at those provisions only where they are mandatory.  Rather, the Court ought look at Part 7AA in its entirely and consider how the review in this case in fact took place.

The core statutory function that we rely on is the review function in 473CC and we submit that in carrying out that core function the IAA did in fact invite submissions which were in accordance with the practice note which came under section 473FC and therefore that statutory context is relevant.

My learned friend, Mr Kennett, submitted that here when you look at the text of section 473FC you will see that non‑compliance with the practice direction does not invalidate the decision.  Be that as it may, we submit that where submissions are asked for under the powers that the Authority did have, and received, and where those submissions are fraudulent, as they are here, then the review function can be said to be affected by the fraud and for that reason the jurisdiction has gone awry.  The next part of our submissions is to ask how ‑ - -

KIEFEL CJ:   Is it sufficient, Ms Costello, to say that if there is an effect on these - if the submissions go awry, there is an effect upon the review and that is sufficient?  Would it not follow from SZFDE that you actually look to the effect upon the actual review undertaken, rather than consider whether there is the possibility that something might go awry in the actual review undertaken?  What you are referring to, I think, is the submissions which contain some wrong material could affect the review undertaken by the IAA, but is not the question which arises whether it has, in fact, had that effect?

MS COSTELLO:   Yes, your Honour.  In asking whether in fact fraud has had an effect, that is the relevant question, we submit that fraud did affect the review.  In responding to your question, your Honour, it perhaps may be useful to conceptualise two things.  One is the process of review, and the other is the outcome of the review. 

Now, if you look particularly at the language of his Honour Justice French in the Federal Court in SZFDE, you will see that his Honour uses language around the “process” of the review.  So here we have two separate things – one is, did fraud affect the process of the review, and then there could be a separate question which is, did fraud affect the outcome of the review in a manner that could not have been different?

We submit that the ultimate issue to be determined is the effect of the fraud on the IAA’s decision‑making process, and that the Full Court’s majority judgment, which we say is respectfully correct, is an orthodox application of the principles relating to fraud on an administrative decision‑maker, as set out by the High Court in SZFDE.

We submit that resolving the ultimate issue, which is whether there has been an effect by fraud on the decision‑making process requires two things.  First of all, “close attention” is required:

to the nature, scope and purpose of the particular system of review –

established by Parliament in Part 7AA of the Migration Act.  For that proposition we refer to the High Court judgment in SZFDE, in particular at paragraph 29 - you have already been taken to that judgment.  Now, in correctly paying close attention to the statute, we submit that your Honours need not stop the analysis by only looking at mandatory obligations, such as the duty to review, but also your Honours ought look at all of the parts of the legislation that bear upon the function of the IAA.  Secondly, whilst bearing:

close attention to the nature, scope and purpose of the particular system of review –

and the provisions of Part 7AA, the second thing that is needed is an evaluation of whether the fraud in fact affected the review.  Now, a clear distinction between our argument and the Minister’s is that we submit that it is unnecessary to show that the fraud affected an imperative procedural fairness requirement, or imperative legislative requirement.

We submit that, whilst in SZFDE there was an impact on the imperative requirement under section 425 of the Migration Act to give a meaningful hearing in a Refugee Review Tribunal decision, that is a difference in fact between this case and the case the High Court considered in SZFDE and it is not a distinction in principle.  In our submission there is no sound reason to apply a principle that fraud only affects the review if it directly affects a particular…..obligation upon the decision‑maker.

EDELMAN J:   Ms Costello, the sound reason of principle that the applicant relies upon is that reason of principle which has been embedded in decisions of this Court since Quin, which is that grounds of judicial review are to be found by expression or implication from the statute itself.

MS COSTELLO:   Yes, your Honour, and we do not ignore the statute.  Rather, we look at the whole statute and we say that when you do so, you can see, first, there is an obligation to review that is a mandatory obligation and, secondly, part of the statutory machinery includes the capacity for the Authority to issue a practice note.  Here, the practice note did allow submissions to be made and so the boundaries ‑ ‑ ‑

EDELMAN J:   Ms Costello, just so I understand your submission, your submission is that the fraud here is not concerned with outcome but it is concerned with process.  But the provision to which you point is section 473CC, and you say that provision is a provision that is concerned with process and not with outcome, despite express provision in subsection (2), which is concerned only with outcome.

MS COSTELLO:   I will just turn over 473CC to answer your question.  Is your Honour talking about 473CC, the review of the decision?  It requires the Authority to review the fast‑track reviewable decision and then subsection (2) talks about the decision‑making power in relation to the disposition, which is either to:

(a)      affirm the fast track reviewable decision; or

(b)      remit the decision –

In the task of reviewing the decision, which must occur under section 473CC, there is some content to that.  So the question is what is the content of that mandatory obligation in subsection (1) to review?

EDELMAN J:   Is that not provided by Division 3?  All the provisions of Division 3 are concerned with conduct of the review and they provide for the powers and the functions in the process of conducting a review.

MS COSTELLO:   Yes, your Honour.  Division 3 provides the conduct of the review and the natural justice requirements.  But there is a conceptual distinction between a procedural fairness error and a failure to review and so, even if there is not a procedural fairness error, there can still be a failure to review.

Here, where the nature of the review is a need to undertake a de novo merits review for a protection visa…..one inherent of that review is for the IAA to consider the primary decision and consider whether it is correct or not.  In undertaking the task of considering whether the protection visa ought be – the decision to refuse the protection visa ought to be affirmed or remitted for reconsideration, the IAA looks at the primary decision and, in fact, in the course of its review may consider the arguments put by the applicant before the IAA as to how it was that the primary decision‑maker erred or why it is that the protection visa should be issued.

Therefore, it is not a radical suggestion to say that, in the course of reviewing the primary decision, the IAA needs to consider the primary decision and any arguments that, in fact, are asked for and received by the IAA. 

BELL J:  Ms Costello ‑ ‑ ‑

KEANE J:   Apropos of that ‑ ‑ ‑

BELL J:   You go ahead, Justice Keane.

KEANE J:   Sorry, Justice Bell.  Ms Costello, do you accept that if the Authority had asked for submissions – was provided with submissions – and then looked at them and decided they were absolutely useless and had no regard to them, that that would be a flaw in the process?  Do you submit that that would be a flaw in the process?

MS COSTELLO:   In the abstract, that would not be a flaw in the process.  What differentiates this case is the fact that there has been fraud.  Here we see the respondent starts with the uncontroversial facts that, as accepted by the Federal Circuit Court and the Federal Court – all three judges – there has been a fraud on the IAA here. 

KEANE J:   The fraud consists of the provision of submissions that are useless – that are irrelevant.

MS COSTELLO:   There is a difference between useless submissions and fraudulent submissions.  That is an important distinction.  Your Honours may recall the cases that Justice French…..consider in his judgment in the Federal Court.  There is a distinction drawn in his Honour’s analysis of those cases between circumstances where negligent or unhelpful work is done by a representative on the one hand and then, on the other hand, cases where there is a fraud.

KIEFEL CJ:   But, Ms Costello, you do not suggest that the extraneous material that clearly had regard to someone else other than the applicants in some real way misled the IAA?

MS COSTELLO:   Yes, we do submit that the submissions misled the IAA.  My learned friend, Mr Kennett, has already set out what the fraud was in this case.  You may also find it of assistance to look at the way her Honour Justice Mortimer characterises what happened at paragraph 173 of her reasons in the core appeal book at page 148.  Her Honour describes the result being a:

false representation and impressions which I have set out at [154] above.

So, here there is something qualitatively different from unhelpful submissions being provided.  Rather, as you can see at paragraph 154 of her Honour’s, with respect, correct description of what happened here, the contents of the submissions reveal that the IAA was the recipient of fraudulent submissions.

BELL J:   Ms Costello, I think the appellant draws a distinction between recognition of the fraud perpetrated on the respondents and the question of whether there was in this context of this statutory scheme a fraud on the IAA.  You place some emphasis on the IAA’s invitation pursuant to the practice direction.  That was an invitation for the purposes of the review to provide submissions on why the visa applicant disagreed with the Department’s decision or why any claim or matter presented to the Department had been overlooked by the delegate.

When one turns to the submissions for CHK16 at pages 5 and following of your book of additional materials, one sees that submissions concerning why the decision of the Department was wrong material to the respondent were addressed.  There is no suggestion that a claim or matter presented to the Department was overlooked.

The practice direction explains that if a visa applicant wanted to present new information it must provide an explanation for why that new information could not have been given before the decision was made or why it is credible personal information consistent with the statutory scheme and there was no such submission.

What in accordance with the practice direction was the effect of the inclusion of some material of what might be described as a broad evidentiary nature that was irrelevant to the one thing the submission was seeking to do, as it seems to me, which was to explain why the decision of the Department was wrong in circumstances in which the respondent was a failed Tamil asylum seeker?  The invitation I am ‑ ‑ ‑

MS COSTELLO:   Your Honour’s question ‑ ‑ ‑

BELL J:   What I am drawing to your attention, Ms Costello, is that the invitation is not an invitation at large, it is an invitation to address specific topics.  One of those topics alone was addressed, that was why the decision of the Department was wrong, and submissions were addressed on that subject matter relating to a failed Tamil asylum seeker.

MS COSTELLO:   The issue is not so much are these submissions differ from what the practice note invited.  The issue, in our submission, is that the submissions that you see for CHK and DUA are both – were fraudulent submissions that you see quite starkly, for example, on the top of – on the first page of the submissions for CHK, which is at page 5 of the book of further materials, you see the words:

The applicant seeking review has instructed as follows: -

and you see the same beginning to the submissions on page 10 of DUA’s submissions.  It is not true.  The applicant had not instructed as…..because as you have already had discussions about, the applicants did not instruct in respect of various facts, for example, on page 8 at 35 to 37 and on page – moving over to the DUA submissions at paragraph 36 on page 12.

So what the IAA actually received was a set of submissions which the findings of fact in this case make clear was affected by fraud.  The one aspect of the fraud that the Minister did not describe which was found below was that it was a fraud to provide only a template submission to the IAA when what was represented by the representative to her clients was that individualised submissions would be provided. 

Instead of individualised submissions, the representative provided submissions that were not just not individualised but also contained false facts and that has been found to be a fraud.  So, here what the IAA did, in fact, in carrying out its core function of review was to ask for, receive, read, consider and make conclusions about submissions that are themselves fraudulent.

BELL J:   The matter that I am raising with you, Ms Costello, is that in the absence of any evidence that either respondent sought to claim that a matter presented to the Department had been overlooked, or that there was a basis for the IAA to receive new information, what is the basis for concluding that the fraud on the respondent had any operative effect on the IAA?

Such submissions as were presented in this boilerplate fashion went to the question of why the decision of the Department was wrong, having regard to the Tamil ethnicity of the visa applicant, and the fact that he was a failed asylum seeker.

MS COSTELLO:   Well, the first answer to your question, your Honour, is that it is not an issue here in this appeal that there has been a fraud on the IAA.  That is not something that the Minister challenges.  There has been a finding which is not challenged that there has been a fraud on the IAA, and that was found by all three judges.  The issue as I apprehend it – sorry, I did not mean to interrupt your Honour ‑ ‑ ‑

BELL J:   Well, it is just, Ms Costello, what is not accepted is that the fraud perpetrated on the respondents operated to vitiate the performance of the statutory task by the IAA.  They are distinct considerations.

MS COSTELLO:   Yes, your Honour.  So there is, in the way we put our case today, first of all fraud on the IAA has been found.  Second, how does the court determine if the fraud stultified the IAA’s process and, in that regard, we submit that you look at the task of review and you look at the whole statutory context and you consider whether in fact the review was affected.  Then the next question is, in doing that, is it necessary for the party seeking certiorari following a fraud finding to attach only to an imperative obligation or not, and we say it is not so necessary.

Then the next part of the analysis, your Honour, is whether the IAA’s process in this case was stultified by fraud.  So to move to that, in answering your question, we submit that the Federal Court was correct to find that fraud stultified the decision.  You have been already taken to Justice Mortimer’s findings in some part, but her Honour ascribed the fraud at paragraph 102, which is at core appeal book page 131 and Justice Griffiths described it at paragraph 49 on core appeal book page 116.

But perhaps the most succinct distillation of what the fraud was, was from his Honour Justice Wheelahan at paragraph 188, which is at core appeal book page 152.  What Justice Wheelahan stated was that:

in the discharge of its statutory review function the Authority took account of submissions that contained false information –

We submit the IAA reviewed this case taking into account the submissions, unaware of the fraud, and believing that the submissions reflected the respondents’ positions.  Now, even if the IAA disregarded the material that it saw as obviously erroneous, the balance of the submissions did not reflect what the applicants before the IAA wished to say.

Her Honour Justice Gordon already this morning referred to the finding of Judge Riethmuller in the Federal Circuit Court at paragraph 79 which is at core appeal book page 75, and that finding by his Honour is taken up by Justice Mortimer at paragraph 131 of her Honour’s judgment.  But what you saw when you looked at paragraph 79 of Judge Riethmuller’s judgment this morning is that that Judge Riethmuller found:

I am persuaded that he –

That is DUA16:

would have sought to provide more information, if she had told him he had the opportunity to do so.

BELL J:   But that is not a finding either that the visa applicant would have sought to provide information to show that a claim had been overlooked or information that would satisfy the requirement for new information.

MS COSTELLO:   We would submit that if non‑fraudulent submissions had been provided, then those submissions could have done three things.  First of all, non‑fraudulent submissions could have been individualised, persuasive and professional.  Secondly, non‑fraudulent submissions could have contained helpful references to country information and not created the negative impression that a submission with wrong facts in it may create.  Thirdly, non‑fraudulent submissions could have provided further information and asked for that new information to be considered under section 473DD.  Also, non‑fraudulent submissions might have contained a request for an opportunity to provide information in an interview. 

We have a usual finding of fact for in particular DUA16 that there was more he wanted to say and your Honours may reach a point of considering what difference could non‑fraudulent submissions have made.  Now, we submit your Honours do not need to make any radical departure from case law as it already stands and, in that respect, if your Honours would consider the case of Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326. Her Honour Justice Gordon was, along with Justice Gageler, the author of the passage to which I would like to refer at paragraph ‑ ‑ ‑

KIEFEL CJ:   Ms Costello, which tab number is that case at?

MS COSTELLO:   Yes, sorry, it is tab number 13, your Honour.

KIEFEL CJ:   Thank you.

MS COSTELLO:   In that case, it was a context of a primary decision rather than a tribunal decision or an IAA decision.  But the question that arose for the consideration of Justices Gageler and Gordon in WZARH was what difference the lost opportunity could be seen to have made.  At paragraph 66, their Honours observed that:

The Second Reviewer ought reasonably to have considered that the evidence and submissions presented to the First Reviewer could reasonably be expected to have differed in their coverage, detail and emphasis had the respondent and his advisors been aware that the First Reviewer would not be making the assessment.

At paragraph 69, their Honours observed that:

In failing to give the respondent notice of the changed procedure, the Second Reviewer failed to afford the respondent a reasonable opportunity to be heard.  There is no basis on which it can be concluded that the decision made by the Second Reviewer . . . would inevitably have been the same if the respondent had been given a reasonable opportunity to be heard.

In that case there was not evidence of what would have been said.  There was instead a conclusion that it would not inevitably have been the same if the reasonable opportunity to be heard had been given and that it could reasonably be expected to have differed in coverage, detail and emphasis.

Similarly, here, we say that had the non‑fraudulent submissions been considered, then they could have made a difference.  Justice Edelman asked this morning, did the Minister submit to the Federal Circuit Court?  But nothing the applicants to the IAA could have said would have made any difference.  To answer your Honour’s questions, no, the Minister did not make that submission.  Indeed, my learned friend for the Minister conceded that coherent submissions may have made a difference.

But then my learned friend speculated that had the IAA asked for clarification, having realised the mistake, then it was likely that non‑fraudulent submissions would not have been advanced.  We submit that that is speculation that your Honours ought disregard.  Instead, your Honours ought find that if the IAA had received honest individualised submissions rather than fraudulent submissions, there is a realistic possibility that the outcome of the review could have been different. 

Now, that sounds like the materiality test – unclear because SZFDE preceded your Honours’ judgment in SZMTA – whether a materiality…..will be imposed in thinking about when…..for a fraud on the IAA.  Here, a way that your Honours could approach it is that when looking at whether there has been an effect of fraud, your Honours look at whether there has been an effect on the process of review.  That is a different question to whether there has been an effect on the outcome. 

In the case of Stead that your Honours are familiar with – Stead, it is not in the authorities – but your Honours are familiar with Stead v State GovernmentInsurance Commission (1986) 161 CLR 141 at 145, you would recall the phrase that it is necessary to “proceed with caution” to find that a procedural fairness flaw:

could have had no bearing on the outcome –

Similarly, here, we submit that your Honours should proceed with caution in finding that, where there is a factually found fraud on the IAA, it could have made no difference. 

We say that the process of the IAA’s review was affected by fraud because in fact fraudulent submissions were asked for, given, considered and that has been a fraudulent effect.  If we need to show more we say further, that if non‑fraudulent submissions had been given, that could have made a difference and that is sufficient.  Unless there are any other questions on this part one I will now turn over to my learned friend the notice of contention.

KIEFEL CJ:   Yes, thank you, Ms Costello.  Yes, Mr McBeth.

MR McBETH:   May it please the Court.  By the notices of contention the respondents contend that the actions of the Authority in each case – that is, to complete the review and make a decision on the review without taking any action at all to rectify the situation where the Authority was aware that there was something profoundly wrong with the submissions that were before it and that they were evidently about someone other than the respondent was unreasonable.  So in that sense it is the conduct of the review that the…..respondent said was so unreasonable and a reasonable decision‑maker could have proceeded that way.

Can I start by taking the Court to the reasons of the Authority.  Justice Gordon took the Court to them when my learned friend was speaking.  First of all, to page 22 of the core appeal book.  At paragraph 5 there, this is the sentence that her Honour Justice Gordon was emphasising.  The Authority has recognised:

Of some concern is the fact that despite clearly referring to the applicant, the submission contains reference to claims that appear to have no logical bearing or connection to the applicant.

Now, that is quite a different matter to having some superfluous matters included in an otherwise accurate submission, which might be the impression that the Minister’s submissions give.  But that is not the case.  It is the case that they were entirely about someone else insofar as they were about anyone and, importantly, at paragraph 5 the Authority noticed that.

Then, in the following sentences in paragraph 5 the Authority goes on to talk about all of the quite stark factual claims that had absolutely nothing to do with the claims that applicant CHK was putting forward, and then concludes by saying:

these references are not intended to be new claims or information –

and, importantly, I emphasise:

or form part of the applicant’s case, but instead are references to unrelated matters that appear to have been included in a not insignificant error by the representative.

So that is CHK’s case.  If I could then take the Court to page 7 of the ‑ ‑ ‑

KEANE J:   Just before you go on, is not the effect, then, of paragraph 5 that essentially the Authority is ignoring those irrelevant submissions?

MR McBETH:   No, your Honour, it is not, and that can be seen from paragraph 4 where the Authority says:

The applicant’s representative provided a submission to the IAA.  The submission in part emphasises aspects of the applicant’s claims. 

That is false and I will take your Honour to why that is false shortly.  Insofar as there are any factual claims discussed at all, they are not about this applicant.  He goes on to say:

I am satisfied that these aspects of the submission do not contain new information and I have had regard to the submission in this regard.

So they have been taken into account on the erroneous misunderstanding that they, in part, emphasise…..of this applicant’s claims.  Then it goes on to say:

The submission contains generic reference to the application of legal provisions –

some of which were out of date, and then:

Nevertheless, I have considered those legal submissions in my assessment of the applicant’s claims insofar as they apply to –

his case.  Well again, in many aspects – and I will take your Honours to why this is so – insofar as they purport to address the decision of the delegate, they do not.  So insofar as the Authority believed that to be the case, the Authority took that into account, and that has undoubtedly had an impact on the way that the Authority considered its case.

So I hope that answers your Honour Justice Keane’s question.  If I can then take the Court to what the Authority did in DUA – so that is at page 7 of the core appeal book.  At paragraph 7 of the decision record the Authority says:

The submission makes reference to what appears to be a new claim.  It states that the applicant is perceived to belong to the LTTE, is suspected of a crime . . . None of these claims have ever been put forward by the applicant.

and not only that:

The information about the brother is inconsistent with the applicant’s own claims about his brother –

and the claims about the applicant’s brother were in fact the core part of DUA16’s claims for protection.  So again, the Authority has noticed.  The Authority says:

I suspect that this part of the submission actually refers to another applicant, and appears in this submission in error.

It is not then put aside.  It is treated in the alternative as either a new claim or it is irrelevant.  But in any case, it seems to have been apparent to the Authority in both cases that there was an intention to put submissions to the Authority, and indeed at the start of each submission document it says that:

The applicant seeking review has instructed as follows: –

in relation to his claims.  There is obviously that intention to put submissions to the Authority about the case.  In both cases, the Authority has noticed that what it has received has no bearing on the cases.

So the fact that the Authority noticed in both of these cases that what it had had no meaningful connection to the case that it was charged with reviewing meant that, in our submission, a reasonable decision‑maker in the Authority’s position would have taken very simple steps to clarify the situation to make sure that it had before it the material that it was supposed to have before it.

EDELMAN J:   Dr McBeth, the point goes a little further than that, does it not, because the reasonable authority is then confronted with almost an impossible task.  Does it take some of the information in the submission into account, disregarding what it sees to be clearly erroneous material?  Does it take none of the submission into account, treating all of it as being provided erroneously?  Or does it have regard only to the legal aspects of the submission, as opposed to the factual aspects of the submissions?  It is not clear what it could do, other than to seek clarification. 

MR McBETH:   Quite so, it is the seeking clarification that we say, at least in relation to the notice of contention, the Authority ought to have done.  It was a very simple straightforward thing for an authority to do.  It was certainly empowered to do so and in both cases this was not just a few ‑ ‑ ‑

KEANE J:   Where did that power derive from?  Where was it empowered to do so?

MR McBETH:   Partly it comes from the likely unconstrained discretion of the Authority to conduct reviews in the way it sees fit in Division 5 of Part 7AA, constrained only by the other provisions of that part.  Insofar as what might have been received may have been information, it is also empowered by section 473DC(3). 

I think your Honour Justice Edelman might have alluded to this in the Minister’s submissions, but a submission document very often will contain a little of each – it will be submissions about why the delegation’s decision was wrong and it might also be new factual plans or new information that bears upon the factual plans which would be new information. 

There is a specific power under 473DC to get new information, as a term of art, but there is also the broad discretion to conduct the review.  Of course, those are powers which are conferred on the condition that they be exercised reasonably.

The respondents submit that it is also significant that in each case the Authority was aware that the one chance that each respondent had to be heard on the review, namely, the written submissions that were provided pursuant to the practice direction’s invitation, did not in fact reflect the case of each respondent that it was required to review. 

The response of the Authority was, as I have just taken the Court to, to some extent to put the information to one side, to some extent treat it as new claims that were not permitted to be considered and to some extent to take the submissions into account on the erroneous belief that they otherwise reflected the respondents’ claims and submissions and reasoning of the delegate.

I say that that is erroneous and her Honour Justice Mortimer explains why that was erroneous.  In relation to the factual claims, her Honour at paragraph 166 of the Full Court’s judgment cites paragraph [4] of the Authority’s decision record.  I will just pause while your Honours turn to it.  So at 166 her Honour sets out the text of paragraph [4], which was the paragraph that I took the Court to in answer to your Honour Justice Keane’s question.  Her Honour says in paragraph 167:

One particular statement in this paragraph is incorrect.  Ms Rajasekaram’s submissions did not emphasise “aspects of the applicant’s claims”.  They emphasised aspects of the claims of visa applicants other than CHK16.  Insofar as the kinds of references to which I have referred above could be said to have any “emphasis”, it was at a highly general level applicable to any male Tamil asylum seeker.

That is to say, as Mr Kennett put it, the clock being wound twice a day.  None of the submissions were about CHK16’s claim as an individual, that being the focus of the IAA’s task.  Her Honour also makes it clear in paragraph 154 where she says:

The content of the submissions reveals that:

…

(b)putting to one side one short sentence in DUA16’s submissions, the IAA was falsely informed each submission was “on behalf of” each respondent, when any connection between the submissions and the IAA’s review of their visa application was no more than generic and coincidental -

Now, it is also, as far as they purported to be about the delegate’s reasoning and insofar as the Authority treated them that way, that is also incorrect.  In fact, that is perhaps an answer to the question that your Honour Justice Bell asked Ms Costello.  At paragraph 162 of the Full Court’s judgment and following, Justice Mortimer, now talking about DUA16’s review and notes at paragraph [8] the Authority stated:

Otherwise, the submission restates the applicant’s claims and puts forward legal arguments addressing the delegate’s decision.

At 163, her Honour makes clear that they do no such thing.  Her Honour says:

That is incorrect.  Parts of the submissions could have been relevant, at the most general of levels, to fears which might be expressed by a male Tamil asylum seeker.  But in no sense can any part of the submissions (including the one sentence which appears to have been factually correct about the background to DUA16’s claims) be described as the “claims” of DUA16 as an individual.  It was DUA16’s claims, as an individual, and DUA16’s capacity, as an individual, to meet the criteria for a protection visa, which were the subject‑matter of the review before the IAA.

At 164, her Honour notes that:

it is apparent that contrary to the IAA’s statement at [8] of DUA16’s review, none of the submissions were directed at the specific decision of the delegate which was under review.

So, they were not submissions that addressed the actual delegate’s decision.  I can point the Court to one very stark example of that.  If I can take the Court to the submissions which are in the respondents’ book of further materials and if I could take the Court to page 08, there are multiple numbers – what I wish to take the Court to is the end of the submissions made on behalf of CHK16, typically to paragraph 37 if your Honour’s have – so 37 of the submissions is that:

The decision maker ‑

So, talking here about the delegate:

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.  The decision maker has also erred in their determination that the applicant can re‑locate within Sri Lanka‑

and then goes on to say why that is not so.  Well, relocation was not an issue in CHK16’s case.  That paragraph appears…..verbatim, I will not trouble the Court with it, but it is verbatim in DUA16’s submissions as well, although, it is there numbered 38.  Likewise, DUA16 was not a media personality, he was not an ex‑policeman and relocation was not in issue in his case either.  Insofar as they purport to address the delegate’s decision, in fact, they do no such thing.

In any event, as far as the notice of contention is concerned what is absent from the reasons of the Authority in each case is any reference to any action taken or even considered to rectify the obvious problem with the submissions and the….that the Authority was required to review.  The Authority in each case took no steps to inquire whether there were submissions that actually related to the relevant…..case that the respondent had intended to be before it.

Now, against us…..at paragraph 72 of the Minister’s submissions that it could not have been unreasonable because there was enough information in the submissions to suggest to the Authority that the respondents had given all the information and the submissions that they wished to give. 

In my submission, that is unsustainable in light of the very clear and stark wording of the Authority’s decision record in each case.  However, even if that were accepted, it certainly appears to run directly counter to the Minister’s case on the ground of appeal.  If the Authority had acted on the wrong assumption that the fraudulent submissions genuinely represented the case that each respondent wished to put forward, then it must follow that that wrong assumption and the consequent treatment of the fraudulent submissions on that basis must have affected the conduct and indeed the outcome of the review.

In any case though, if I can for the purposes of the notice of contention focus on the unreasonableness argument.  The unreasonableness that is alleged in the notice of contention is proceeding to make a decision on a review without seeking clarification about the obviously problematic submissions or without getting any new information. 

It is of course well established that the statutory powers are conferred on a decision‑maker on the condition that they be exercised reasonably.  I do not think I need to give your Honours authority for that proposition, but on the facts of these cases each Authority breached the condition of reasonableness in the conduct of the review.

The reasonableness of course – and I note that the Court this morning handed down ABT17 which may indeed overtake some of what I have to say about unreasonableness in this context.  Of course, I have not had the opportunity to read that judgment yet.  But reasonableness, in any case, falls to be judged by reference to what would reasonably be expected of a reasonable repository of the power in the factual circumstances of the impugned decision. 

Justice Gageler in SZVFW at paragraph 69 and also Justice Hayne, together with your Honours Justices Kiefel and Bell in Li at paragraph 71 each adopted the formulation for unreasonableness that no sensible tribunal acting with due appreciation of its responsibilities could have taken that course.  In contrast to the facts in SZVFW, the Authority in each of the present cases was on notice that something had gone seriously awry as to the content of the material that was before it. 

As to the appreciation of the Authority’s responsibilities, the Authority was aware that each respondent claimed to fear being killed or suffering some other serious harm if the decision to refuse the visa was affirmed and they were returned to Sri Lanka.  It was also aware that under the scheme under Part 7AA the respondents would not have an opportunity to appear before the Authority or to give any further information, including information clarifying the obvious problem with the submissions, unless the Authority took the action of contacting the respondents for clarification or to get further information. 

In circumstances where in each case the Authority had invited submissions on the review…..the Authority had received a document purporting to be the submissions that each respondent wished to make, but the Authority in each case realised that the factual claims referred to in the submissions bore no resemblance to the claims that it was required to consider on the review then the minimum that could be expected of a reasonable Authority would be to make the most simple and obvious of inquiries to ensure that it had before it the material that it was intended to have in conducting the review.

The conduct of each Authority, noticing this glaring problem with the material before it but nevertheless proceeding to make a decision which had enormous consequences for each respondent, without taking any remedial steps at all, was well short of the minimum standard one can expect of a reasonable authority.  In my submission, the conduct of the review was therefore unreasonable.

KEANE J:   Mr McBeth, do you accept that it would be open to a reasonable decision‑maker in the shoes of the Authority, in circumstances where there are limits to procedural fairness entitlements of an applicant, and where the submissions are called for as a matter of assisting the Authority rather than as an aspect of procedural fairness entitlement in the applicant, that a reasonable decision‑maker in the shoes of the Authority looking at these submissions could have said, “Well, these submissions are plainly irrelevant.  I will have no regard to them”?

MR McBETH:   Not looking at these submissions, no, your Honour, because these submissions are more than plainly irrelevant.  They are submissions that are plainly about someone else in circumstances where the framing of the submission itself makes clear that it was intended that the Authority have submissions before it.  In other words, the form of the ‑ - -

KEANE J:   Intended submissions, intended by whom?  Intended by whom…..submissions?

MR McBETH:   By the respondents.  The respondents wished – it was apparent from the document that the respondents wished to say something to the Authority to advance their case.  What the Authority received and noticed it received in both cases did no such thing.  It was clearly about somebody else.  It is relevant to the assessment of reasonableness.

Your Honour alluded to the fact that in the IAA system, there is a constrained procedural fairness regime.  That, in my submission, is relevant to the assessment of reasonableness; because the Authority would be well aware that this was the one and only chance to say whatever it is that the applicant wished to say, and nevertheless something had gone horribly wrong.

They had submissions that were not just irrelevant in the sense of being unhelpful; they were about somebody other than the person they were supposed to be reviewing.  That was clear and that was noticed and yet it was not acted upon.  In my submission, that could not be reasonable.

If I could just turn briefly to the failure to inquire – if that be a category?  It is, of course, just another species of unreasonableness.  This case – the facts of this case are quite different to SZIAI to which the Minister referred and other cases regarding the failure to inquire in that this was not a complaint about the failure of the Authority to conduct its own investigation about the fact in issue in the review.  So, for instance, in SZIAI, it was a dispute about whether a particular document was authentic or not.  That is a fact in the review.

In our case, by contrast, the steps that the Authority should have taken were steps to rectify the obvious problem that the Authority had itself identified about the material before it.  So, in that sense, it was a failure to ensure the sound conduct of its own review as opposed to investigating an issue of fact. 

Could I just take the Court to the judgment in SZIAI (2009) 83 ALJR 1123? It is in the joint book of authorities, No 14 at page 460. The paragraphs are not numbered in the ALJR, but the medium neutral citation is paragraph 25. If your Honours could just bear with me while I bring up my copy – page 460 of the report. It is the paragraph of the joint judgment which appears surrounding point 20 on the page. So, at approximately line 21, part way through that paragraph, their Honours say that:

The duty imposed upon the Tribunal by the Migration Act is a duty to review.  It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. 

In my submission, that highlights the difference between cases like SZIAI and this case because the failures to take the steps to remedy the identified problem with the submissions was intrinsically connected, so the conduct of the review itself.  Be that as it may, the next paragraph starting at line 32 of the report – it is paragraph 26 in the medium neutral version – that paragraph is put against us in written submissions by the Minister.

The Minister asserts in reply submissions that there was nothing to suggest that any steps taken by the Authority could have yielded a useful result.  In the Minister’s reply submissions at paragraph 14, the Minister asserts that the fundamental point is that there is nothing to indicate that the respondents might with to make additional submissions.  Well that is not so. 

In fact, your Honour Justice Gordon took the Court to this finding of his Honour Judge Riethmuller earlier.  At page 76 of the core appeal book, which is part of the Federal Circuit Court’s judgment, at paragraph 79, the last sentence says:

However, I am persuaded that he –

That is DUA16:

would have sought to provide more information, if she had told him he had the opportunity to do so.

In other words, he had more to say and given the opportunity would have said it.  His Honour made that finding – I think it can be divined from what appears in the balance of paragraph 79, but his Honour certainly made that finding following on from oral evidence from DUA16 and she described the types of issues that he had said he wanted to put to the Authority which were additional to what was in the statutory declaration that had been before the delegate.

BELL J:   Is that a submission that Judge Riethmuller’s finding was that DUA16 would have sought to provide new information admissible under the statutory review scheme?

MR McBETH:   Your Honour, we cannot say whether it would be new information in the 473DD sense or not.  Because the inquiry never happened, we have a counterfactual here and we do not know precisely what would have been said and whether it was new or whether it was, I suppose, urging particular interpretation on the information that had already been given, both of which are ‑ ‑ ‑

BELL J:   What are we to make of Judge Riethmuller’s finding given that submission?

MR McBETH:   What we can make of it is that there was something that the respondent would have said if he were asked which – being something that he wished to be before the Authority which was relevant to his case.  As I say, it might be that that is new information, in which case it has to clear the hurdles under 473DD or it might be – it may have been, as I said, urging a particular interpretation about facts or information that was already before the delegate, both of which, potentially, have a bearing on the outcome of the review. 

Just because something is not new information does not mean that it might not change the course of the review.  Indeed, her Honour Justice Mortimer sets that out quite clearly in her Honour’s judgment in the Full Court.  It is not merely a binary thing.  Indeed, when submissions are put to the Authority, typically, they will contain some material which meets the definition of “new information” and some material that does not, and it needs to be sifted and applied by the Authority accordingly. 

BELL J:   As far as the notice of contention is concerned it does not depend upon the fraud on the respondent or the IAA.  Your contention is that if a visa applicant submits submissions and it is obvious to the reviewer that there is a factual error or more than one factual error in the submissions, it is legally unreasonable not to seek clarification from the visa applicant concerning that apparent factual error.

MR McBETH:   We do not put it quite so broad as there being one factual error or multiple factual errors.  What we say is that, on the face of these two sets of submissions and what was realised by the Authority in each of those two cases, yes, it is plainly unreasonable.  So, again, a factual error is one thing and that might be quite different in terms of assessing reasonableness, but this was a long way past that.  These were submissions that the Authority in both cases understood had nothing to do with the task they were supposed to perform, namely, reviewing the application of the visa criteria to these two respondents.

KEANE J:   So the Authority was in the position - if the submissions had nothing to do with the task they were to perform, the Authority was in the position as if it had received no submissions?

MR McBETH:   No, because it was apparent that the respondents wished to put something before the Authority, and what the Authority received factually did not deal with the matter that the Authority was tasked with reviewing.  That is different from simply receiving nothing and in many cases, the Authority will receive nothing, and we do not say that there is a duty on an authority in those circumstances to call up the respondent and

say, “Just checking, did you want to put on some submissions?”  That is not our case. 

Our case is limited to these facts, where plainly there was something that was supposed to be before the Authority but was not.  Furthermore, what was before the Authority was plainly about somebody other than the respondents and that is what triggers the unreasonableness in these circumstances.  So in this sense, what has been lost here is the opportunity that the respondents otherwise would have had to put forward submissions about their case, due to the fraud of their agent.

It is sufficient, in my submission, that an opportunity to put on genuine submissions that would not have been affected by fraud could possibly have assisted them, and that such an opportunity would not have been futile.  Now, that is consistent with the approach of the High Court in SZFDE, in which case the appellant was not required to demonstrate what she would have said at a hearing had she attended.  It was enough that she had lost the opportunity.

As far as the consideration of submissions is concerned, I should also draw the Court’s attention to the case of CLV16 in the Full Court.  This is covered in the parties’ submissions but among other things in CLV16 the Court noted that where written submissions have been sought and received it would be a jurisdictional error not to consider them.  That is effectively a Dranichnikov‑type of analysis but applied in the context of IAA submissions.

The Full Federal Court applied that same principle in the case of DNA17, which is also referred to in the written submissions.  I should also note that, insofar as there is any question about the correctness of CLV16, I note that special leave in that case was sought and refused.

KIEFEL CJ:   I note the time, Mr McBeth.  How much longer will you be?

MR McBETH:   I was actually just concluding, your Honour.  If there are no further questions, those are the submissions on the notice of contention.

KIEFEL CJ:   Thank you.  Yes, Mr Kennett.  Do you have anything in reply?

MR KENNETT:   Yes, your Honours, I hope briefly.  If I could start with the notice of contention.  The effect of our learned friend’s submissions appears to be that, having extended an opportunity to each of the respondents which it was not required to extend, the Authority, having received their submissions, acted unreasonably in not chasing them or chasing their agent to make sure that everything had been said that they wished to be said. 

That sits uneasily, of course, with the proposition, often repeated, that administrative decision-makers are not under an obligation to assist a party in presenting his or her case and it also sits uneasily with the absence of any general procedural fairness obligation in the legislation.

It was emphasised that the provision of submissions was the one chance each respondent had to influence the Authority.  It is not clear, with respect, what flows from that.  It is not a chance, it is not a one chance extended by the statute.  The statute contemplates and certainly permits the Authority to proceed without having extended any opportunity in the ordinary case to a referred applicant to seek to influence it.

Can I go then to the – and this part of the submissions is probably relevant to the appeal as well as the notice of contention.  My learned friend, Mr McBeth, sought to analyse the IAA’s reasons in both matters and to criticise the IAA for mischaracterising things or perhaps relying on or giving attention to submissions that were obviously irrelevant and obviously the wrong submissions.

If one goes to page 7 of the core appeal book in relation to DUA16, and to page 22 in relation to CHK16, one sees the Authority engaging in a reasonably…..process of seeking to divide the material that has been put to it into categories that are necessary for it to deal with that material, material in the nature of submissions which it can have regard to, to the extent that it is relevant; material in the nature of information which might or might not be new information, and if it is new information then it becomes a necessity to put it through the filter of section 473DD.  So, if we take page 22 as an example – and this is where our learned friend, Mr McBeth, started – in paragraph 4, the Authority says:

The submission in part emphasises aspects of the applicant’s claims.  I am satisfied that these aspects of the submission do not contain new information –

So that is an identification that the part of the submission that…..regards itself as capable of considering and not too much emphasis should be put at this introductory stage of the reasons, we would say, to the characterisation of materials emphasising aspects of the applicant’s claims.  If that matters, we would say that “claims” includes the personal circumstances and reasons why the applicant says those circumstances engage Australia’s non‑refoulment obligations.  The assertion about circumstances in Sri Lanka and the assertions about the law can be brought under that heading.

The Authority’s reasons should not be read with an eye finely attuned to teasing out these categorisations and finding error in them.  But the Authority then moves in paragraph 5 – and we have spent a deal of time on this already – identifying what it had noticed that:

the submission contains reference –

does not consist of:

contains reference to claims that appear to have no logical bearing or connection to the applicant.

True it is that there is precious little and arguably nothing about the applicant’s own personal circumstances, but it does not follow from that that the submission was entirely about this other person.  The Authority deals in what is, with respect, quite a correct way with that extraneous material which we have looked at earlier.  The Authority then goes on to refer to some legal submissions and some country information.  It says some of that:

is not new information –

Other of it is new information.  Again, this winnowing process that I referred to earlier.  That is what the Authority does routinely when it receives submissions which, as my learned friend rightly said, will often include a bit of both – a bit of argument and a bit of new information.

The Authority, we would say, in this part of…..reasons has certainly not mischaracterised the submissions and not betrayed any understanding of the submissions that indicates that somehow the submissions were wholly irrelevant, wholly extraneous, the wrong document.  The submissions were, we would submit, clearly understood by the Authority to be submitted in support of each of these respondents. 

So, it is just not right that there was something about the submissions that made it unreasonable, particularly, of course, bearing in mind there is no obligation to receive submissions at all or to invite submissions or to receive submissions, nothing that made it unreasonable for the Authority to proceed on the basis simply that it had been given a set of largely inutile submissions. 

Could I then move backwards to the appeal?  I will keep moving backwards, I think, through the course of my learned friend’s argument.  The point about WZARH appears to answer a point we do not advance.  As I have said, we do not put a materiality answer to the ground of fraud or the ground of unreasonableness.  We do not suggest that a better submission could not possibly have made a difference.  The debate between us is as to whether in the appeal the submission of a deficient submission undid the Authority’s process or compliance with its statutory functions in some way that constitutes jurisdictional error.

Now, it was put that there had been a finding of a fraud on the IAA.  We note that Justice Mortimer in the paragraph that your Honours were referred to refers to a fraud by the agent on her clients.  The extent of the fraud on the Authority is, with respect, far from clear.  …..may be what Justice Wheelahan said, which was that the Authority took account of submissions that contained false information.  Even that is difficult to turn into something that vitiates the Authority’s decision. 

No doubt the submissions did contain false information, but your Honours have seen how the Tribunal successfully dealt with that and winnowed it out.  The Authority was told, wrongly, arguably fraudulently, that the submissions represented the instructions of each client but, as I said in‑chief, it is hard to see anywhere in the reasoning process where that has led the Authority astray and, indeed, the proposition that these rather strange documents represented the instructions of a client was just so obviously not right, but it is difficult to infer or imagine that having a substantive effect on the Authority’s reasoning.

Maybe the most coherent explanation for how the submissions might have affected the Authority’s conduct of its review is the analysis of Justice Mortimer, to which your Honours were taken, particularly page 144 of the core appeal book, paragraph 154, where her Honour sets out a series of propositions about the nature of the submissions.

Propositions (a) to (e) deal, respectfully, correctly with the content and nature of the submissions.  Paragraph(f), though, we would submit, with respect, is pure assertion and it is hard to see the basis for it.  Her Honour says that the Authority was given – it says “give”, but I think it should read “given” –

the false impression that all that could be said about the respondents’ fears was material which was generalised and generic –

Now, it is not clear, with respect, that the Authority had that impression, harboured that impression.  It is hard to see that in the material.  The only indication that it is a false impression is one of the respondents having given evidence that he would have wanted to submit new information if he had been advised that he could.  But that deficiency of advice is not part of the identified fraud.  The identified fraud is the preparation of the submission.

So it is quite irrelevant in the end that the agent also failed to advise her client that it was open to him to seek to submit new information.  So subparagraph (f) of paragraph 154 we would respectfully submit just does not have a proper basis; and then (g) is similar.

It is not clear where one sees the evidence of the Authority having that impression, nor is it clear that that is necessarily a false impression, nor is it apparent that it was an impression that weighed in any significant way against them because, of course, this is a statutory process that contemplates that people will put all their claims before the Minister, before the delegate first time round, and that they will not hold good points back and use them in the Tribunal.

So having said all that, when our learned friends submit that it is sufficient for the respondents to succeed if the fraud of the agent had an effect on the process of the review, the effect on the process remains, with respect, nebulous.  We also submit, of course, that that way of stating the test stated it too broadly.  It was urged upon your Honours that in analysing the statutory scheme one should not stop with imperative functions but have regard also – one should not stop with mandatory provisions, and implicitly perhaps also have regard to powers of the Authority.

Thus, what follows from that seems to be that if the Authority is derailed by…..from doing something that it was empowered but not obliged to do that that leads to a review inconsistent with the statute.  Now, we would submit, we are not in that territory but if we were we would respectfully differ from that submission because it is a question, we would say, of what the statute requires to be done and that, of course, is to conduct a review, going back at the start of my learned friends’ submissions to conduct a review under section 473CC. 

But, as your Honour Justice Edelman rightly pointed up, in order to understand that concept one needs to go to the provisions of, in particular, Division 3 which govern how the review is to be conducted.  Those are the provisions that give shape and content to that notion of a review.  As I have sought to emphasise in‑chief, they do not establish in any sort of imperative way, a process of receiving and considering submissions.  Those are the submissions in reply.  If the Court pleases.

KIEFEL CJ:   Yes, thank you, Mr Kennett.  If the parties wish to provide a note with respect to the decision in ABT17 today, would they do so within three working days. 

The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 1.02 PM THE MATTER WAS ADJOURNED