Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gordon,Keane,Edelman JJ.,Bell
• Judgment Date: 09 December 2020
• Neutral Citation: [2020] HCA 46
• Date: 09 December 2020
• Docket Number: M57/2020 & M58/2020
• Court: High Court

[2020] HCA 46

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Keane, Gordon and Edelman JJ

M57/2020 & M58/2020

Minister for Home Affairs

Appellant

and

DUA16 & Anor

Respondents

Minister for Home Affairs

Appellant

and

CHK16 & Anor

Respondents

Representation

G R Kennett SC with N M Wood for the appellant in both matters (instructed by Clayton Utz)

G A Costello SC and A N P McBeth for the first respondent in both matters (instructed by Clothier Anderson Immigration Lawyers)

Submitting appearance for the second respondent in both matters

Migration Act 1958 (Cth), Pt 7AA.

Immigration — Refugees — Application for protection visa — Immigration Assessment Authority (“Authority”) — Review by Authority under Pt 7AA of Migration Act 1958 (Cth) — Where applicants engaged registered migration agent to provide submissions to Authority — Where agent fraudulently provided pro forma submissions — Where fraudulent submissions contained personal information relevant to a different person — Where Authority unaware of fraud but aware that submissions erroneously related to another individual — Where Authority disregarded information relating to another individual — Whether agent's fraud stultified Authority's review — Whether Authority's decision was vitiated by agent's fraud — Whether agent's fraud contributed in adverse way to exercise of any duty, function, or power by Authority — Whether Authority's failure to seek corrected submissions containing potentially new information legally unreasonable.

Words and phrases — “agent”, “fraud”, “fraudulent submissions”, “legal unreasonableness”, “new information”, “personal circumstances”, “personal information”, “practice direction”, “statutory review function”, “stultified”, “submissions”, “vitiate”.

ORDER

Matter No M57/2020

• 1. Appeal allowed.

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

  • (a) the appeal be allowed; and

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

Matter No M58/2020

Appeal dismissed.

Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.

Introduction

1 The Immigration Assessment Authority (“the Authority”) has a Practice Direction inviting submissions from applicants for asylum on matters including whether there were any errors in a refusal of asylum by a delegate of the Minister. CHK16 and DUA16 paid a registered migration agent to provide submissions on their behalf. It was found, and it is now common ground, that the agent's conduct was fraudulent because it consisted of her concealing from her clients that she intended to use a pro forma submission with the belief that if she disclosed that to her clients they would not have been prepared to pay for her professional services. The agent acted fraudulently in up to 40 cases including in the cases of CHK16 and DUA16.

2 In the case of CHK16, the agent, acting fraudulently, provided submissions where the entirety of the personal circumstances concerned the wrong person. The Authority was unaware of the agent's fraud. The Authority noticed that the submissions concerned the wrong person yet did not seek to obtain the correct submissions and any new information about the correct applicant. Instead, it had regard to the submissions concerning generic information and legal issues but disregarded the information concerning the personal circumstances of the wrong person.

3 In the case of DUA16, the agent, again acting fraudulently, provided submissions that contained information relevant to DUA16‘s application and some information relevant to a different applicant. The Authority, constituted by a different member and again unaware of the fraud, concluded that those latter references had been included by mistake.

4 In each case, a majority of the Full Court of the Federal Court of Australia concluded that the decision of the Authority was vitiated by the fraud of the agent. The Minister appeals from those decisions on the basis that the fraud had not been shown to have had any effect on a statutory function. By notices of contention, each of CHK16 and DUA16 contends that the Full Court's decision should be upheld because it was legally unreasonable for the Authority not to exercise its power to obtain corrected submissions, involving potentially new information, from the agent when it knew that the submissions concerned the wrong person either entirely or in part. For the reasons below, the decisions were not vitiated by the agent's fraud. As to the notices of contention, in the case of CHK16 it was legally unreasonable for the Authority not to exercise its statutory power to invite the agent to provide the correct submissions containing any new information but in the case of DUA16 the Authority's failure to seek new information was not legally unreasonable.

The first respondents' cases and their agent's fraud

5 The written submissions made by each of CHK16 and DUA16 were prepared on their behalf by a registered migration agent who was also a solicitor. Each paid $600 to the agent to prepare such submissions. The agent said that in 40 cases the submissions that she prepared for the Authority were based upon a template from the first written submission that she had ever prepared. In some cases, the template submissions were not amended at all, and in other cases the template submissions were amended based upon instructions. The submissions made on behalf of CHK16 contained none of CHK16‘s personal information, rather they were the submissions concerned with a different person whose circumstances formed the basis of the template; CHK16 had not been asked for any new information and was not shown the submissions. The submissions made on behalf of DUA16 did involve amendments to the template to include his personal information.

CHK16

6 CHK16 arrived in Australia in 2012 as an unauthorised maritime arrival. On 10 September 2015, he applied for a protection visa. The essence of CHK16‘s claim for protection was that he had become a person of interest to Sri Lankan authorities, who he feared would abuse him, because they wrongly suspected him to be a transporter for the Liberation Tigers of Tamil Eelam (“the LTTE”). He worked in a transport business which often required travel and deliveries around areas under the control of the LTTE. In 2012, he had borrowed money from a money lender but had not been able to repay on time. Following the default, the money lender allegedly complained to the authorities in order to make life difficult for CHK16. In March and May 2012, CHK16 was interrogated by members of the Criminal Investigation Department (“the CID”) concerning an allegation that he had transported goods for the LTTE. He denied this allegation, but he was threatened and abused. The threats were to his life and the kidnap of his children. He continued to deny the allegations but was told that the process would continue. He sold his wife's jewellery to fund the cost of travel to Australia. Since his arrival in Australia, members of the CID have visited his family home on multiple occasions to ask for his location. After an interview, a delegate of the Minister refused his application.

7 As CHK16 was a fast track applicant, his application was referred by the Minister to the Authority for review 1. The agent for CHK16 provided submissions to the Authority on his behalf. The submissions were slightly more than four pages. They bore the applicant's name and said that they were the product of his instructions. But the entirety of the personal detail in the submissions concerned a different person. For instance:

• (i) The submissions asserted that the applicant “was reading a Human Rights degree at the University of Colombo at the time of his departure to Australia in 2013”. CHK16 had arrived in Australia in 2012. He had described living in a refugee camp before commencing work as a transporter, but had never suggested that he had read for a human rights degree at the University of Colombo.

• (ii) The submissions asserted that the applicant had an actual or imputed political opinion of being opposed to the Sri Lankan Government and its lack of human rights practices. CHK16 had never asserted any such political opinions.

• (iii) The submissions asserted that the applicant was at risk as a media personality. CHK16 was not, and is not, a media personality.

• (iv) The submissions asserted that the applicant was at risk as an ex-policeman, and that the “applicant instructs that he will be killed if Sri Lankan Authorities find out he has divulged insider information only he knows, detailing human right abuses, he has witnessed, having been a senior police person with Sri Lanka Police”. CHK16 was never a policeman.

• (v) The submissions asserted that the applicant had assisted two separate organisations with their investigations into human rights violations. CHK16 had made no such claim.

• (vi) The submissions asserted that the delegate had erred by concluding that the applicant could relocate within Sri Lanka. The delegate had reached no such conclusion in relation to CHK16.

8 The Authority had been provided by the Secretary with materials including the reasons for the delegate's decision and the material provided by CHK16 to the

delegate 2. The only logical conclusion that could be drawn from the contrast between that material and the written submissions is that the submissions and information provided by CHK16‘s agent concerned the wrong person. As Judge Riethmuller concluded in the Federal Circuit Court, CHK16 wished to put a claim for protection based on his own circumstances and he had relied upon his agent to do so. The agent had not asked CHK16 whether he wished to give...