(b) The appeals - fraud "on" the IAA (ground 2)
56 As noted above, SZFDE held that it is insufficient to establish that there has been a "fraud" committed on the person whose case has been referred to the IAA for review. It must be established that the "fraud" had the immediate consequence of stultifying, subverting or disabling "an imperative" statutory function (see SZFDE at [32], [49] and [51]).
57 The respondents' primary submission on this matter was that their representative's fraudulent conduct disabled the IAA from conducting the "review" it was obliged to conduct under s 473CC. In my respectful view, that submission was expressed at too high a level of generality and failed to descend to the level of particularity described in SZFDE (with particular reference to the "imperative statutory function" which has been disabled or subverted). The respondents' reference to the IAA's "review" function simply begs the question of what is the particular aspect of that review which was disabled, a question which can only be answered by a detailed consideration of the relevant provisions in Pt 7AA.
58 Recently, in ALR17 v Minister for Home Affairs [2019] FCAFC 182 at [26], the Full Court summarised some of the key features of the statutory review regime under Pt 7AA (drawing on the High Court's observations in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600, to which the following cross-references refer):
(1) a Pt 7AA review is of a limited kind, as is reflected in ss 473BA and 473FA(1) (at [1]);
(2) consistently with s 473DB(1), Div 3 of Pt 7AA "is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by [the Authority]" (at [20]);
(3) the IAA is obliged to conduct a review by considering the "review material" provided to it under s 473CB(1) without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)) (at [22]);
(4) the IAA is not obliged to give to a referred applicant material that was before the Minister or a delegate when a decision was made under s 65(1) (s 473DA(2)) (at [26]);
(5) restrictions are imposed by s 473DD on when the IAA can consider new information (at [28]);
(6) there is a general exhortation in s 473FA that the IAA pursue the objective of providing a mechanism of "limited review" that is "efficient, quick, free of bias and consistent with Division 3 (conduct of review)" (at [36]);
(7) in contrast with a review in the General Division of the AAT, the IAA's dispositive powers are not as broad, because it cannot set aside the referred decision and substitute its own decision, nor is it authorised to exercise all of the powers and discretions conferred upon the Minister (at [42]);
(8) there are "limitations on the form of review for which Pt 7AA provides" (at [52]); and
(9) Pt 7AA is framed on the assumption of the Minister having complied with the requirements of the code of procedure in Subdiv AB of Div 3 of Pt 2 (at [45]).
59 Another important feature of the review regime under Pt 7AA, which was also identified in Plaintiff M174/2016 at [17], is that the IAA's task is not to correct error on the part of the Minister or delegate, but rather is to conduct a de novo consideration of the merits of the decision that has been referred to it.
60 As noted above, these appeals raise issues relating to the content and legal ramifications of submissions which were provided to the IAA by the two respondents' representative. It is important therefore to focus on any relevant provisions in Pt 7AA concerning the provision of submissions by and on behalf of a referred applicant and their consideration by the IAA.
61 The first point to note is that there is no provision in Pt 7AA which creates a direct and explicit statutory right on a referral applicant to make "submissions" generally on a referral (which is not to say that the IAA cannot entertain a submission made by a referral applicant in relation to the referral: see Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [38] to [44] and [53] per Flick, Griffiths and Perry JJ).
62 Secondly, however, there are provisions in Pt 7AA which contemplate that a referred applicant may make "comments", either orally or in writing, on particular matters. It appears that such "comments" are to be regarded as "submissions", as opposed to material which qualifies as "new information" as defined in s 473DC. For example, where a referred applicant proposes himself or herself to give the IAA "new information", it is implicit in the requirement in s 473DD(b) that the referred applicant satisfy the IAA of the matters specified therein that the referred applicant have an opportunity to provide submissions in relation to those requirements.
63 Another example is to be found in s 473DE, which applies where the IAA proposes to rely on "new information" which was not given to it by the referred applicant and the requirements of s 473DE(1) are met in relation to the new information. Where that provision is engaged, the IAA is obliged under s 473DE(1)(c) to invite the referred applicant to "give comments" (i.e. make submissions) on the new information either in writing or at an interview.
64 There is a further aspect of Pt 7AA which is relevant to the provision (and consideration) of submissions in the IAA. It relates to the operation and effect of s 473FB, which empowers the President of the IAA to issue directions regarding inter alia the "conduct of reviews by the Authority" (s 473FB(1)(b)). Where such directions are made, the IAA is obliged "as far as practicable" to comply with them, but non-compliance with any direction does not mean that the IAA decision on a review is invalid (s 473FB(3)).
65 Moreover, if the IAA deals with a review of a decision in a way that complies with the direction, it is not required to take any other action in dealing with the review (see s 473FB(4)). Presumably, however, this does not excuse the IAA from having to comply with a statutory provision in Pt 7AA which is not reflected in a direction.
66 As noted, the Practice Direction dated 21 April 2016, a copy of which was provided to each respondent here, was made under s 473FB. The Practice Direction contains the following material which is relevant to ground 2:
Submissions and new information
20. For the purposes of the review, you may provide a written submission on the following:
• why you disagree with the decision of the Department
• any claim or matter that you presented to the Department that was overlooked.
21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.
67 It may be noted that s 473FB is in Div 5 of Pt 7AA and not Div 3. Section 473DA provides that Div 3, together with ss 473GA and 473GB, are taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA. Div 3 is headed "Conduct of review". As mentioned above, the President's power to issue directions under s 473FB relates inter alia to "the conduct of reviews" by the IAA. Thus the Practice Direction is to be read in conjunction with the statutory provisions in Div 3 relating to the natural justice hearing rule in relation to IAA reviews. No party suggested that the relevant parts of the Practice Direction were inconsistent with the Act or Migration Regulations 1994 (Cth). I shall proceed on that basis, notwithstanding that it may not be easy to reconcile that part of the Practice Direction which describes the matters on which submissions may be made, including why the referral applicant disagrees with the department's decision, which might suggest that the IAA's task is to correct error (see [66] above), with the description of the IAA's review function in M174 (see [59] above). The legal effect of the Practice Direction insofar as the provision of submissions to the IAA and their consideration by it was discussed in CLV16 at [38] to [44] per Flick, Griffiths and Perry JJ (see also DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [46] to [48] per Kerr, Davies and O'Bryan JJ).
68 There are first instance decisions of the Court which hold that there is no obligation on the IAA to advise referred applicants of their opportunities to present new information or submissions (see COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37]-[38] per Rares J, as recently affirmed and applied in EUW17 v Minister for Immigration and Border Protection [2019] FCA 744 at [28] per Jackson J). In the events that occurred here, both respondents were in fact informed by way of a letter from the IAA of these opportunities. Attached to the letters was a Fact Sheet entitled "What you need to know about the Immigration Assessment Authority" as well as a copy of the Practice Direction dated 21 April 2016. Accordingly, there is no occasion to consider the correctness of those first instance decisions.
69 The Fact Sheet contained information regarding the provision of new information to the IAA, as well as on the topic of making a submission. On the latter subject, the Fact Sheet stated :
You can provide a written submission on:
• why you disagree with the department's decision, and
• any claim or matter you presented to the department that was not considered.
Your submission should be no longer than 5 pages and given to us within 21 days of your case being referred to us by the department.
70 As noted, the relevant parts of the Practice Direction are set out at [66] above.
71 The evidence indicated that DUA16 read the letter he received from the IAA which described these opportunities and that he also understood from his earlier interview with the delegate that there would be a "limited opportunity to provide new information in exceptional circumstances" in the IAA (see the primary judgment at [77]). Although DUA16 gave evidence that on discovering that the information provided by Ms Rajasekaram was identical to that given by his previous lawyer, he asked her whether he could provide new information and was told he could not, that evidence was rejected specifically by the primary judge (at [79]-[80]). The evidence before the primary judge also indicated that CHK16 went through the letter he received and understood that he could submit new information. In these circumstances, it is unnecessary to determine the legal consequences that may follow if the Practice Direction or similar information is not received by the referred applicant (see EUW17).
72 As is made clear in s 473DC(2), there is no obligation on the IAA to "get" or receive "new information", but in some circumstances it may be legally unreasonable for the IAA not to consider whether it should exercise that discretionary power (see DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665 at [45] to [47] per Griffiths and Steward JJ).
73 The primary judge's reasons for concluding that the representative's dishonesty or misconduct stultified or subverted the review process under Pt 7A is set out at [84] to [86] of his Honour's reasons for judgment. Paragraph 84 is set out at [34] above. Paragraphs 85 and 86 are as follows:
85. Applying the existing authorities to the conduct in this case is difficult. The solicitor did not set out to actively prevent the clients from engaging in the IAA process. However, the effect of the conduct was to thwart a real or substantive engagement by the applicants with the IAA. The conduct exhibited an element of dishonesty in the solicitor's dealings with the clients, and recklessness in her dealings with the IAA.
86. In light of the conduct of the solicitor in this case I am persuaded that it is appropriate to set aside the decisions by the IAA as the proper performance of the IAA's functions was stultified by the conduct of the solicitor.
74 The Minister's contention that these reasons disclose appealable error should be accepted for the following reasons. First, it was erroneous of the primary judge to state without qualification at [84] that the IAA "must" consider whether to "get" or receive "new information". There is no such duty, however, depending upon the circumstances the failure to give consideration to that matter may be legally unreasonable (see DPI17 at [45]-[47]).
75 Secondly, the mere fact that the submissions provided to the IAA on behalf of DUA16 and CHK16 contained information relating to the personal circumstances of persons other than themselves did not stultify or subvert the IAA's review processes because:
(1) in both cases, the IAA recognised the representative's error in including that material (this is to be contrasted with the position in SZFDE where the High Court noted at [51] that the RRT there had "undoubtedly acted on an assumption of regularity");
(2) in any event, in both cases, the IAA said that if the material did in fact relate to the relevant referral applicant, it did not qualify as "new information". This was because the information had not been provided to the delegate and no explanation was provided for that omission as required by s 473DD(b)(i); and
(3) as noted above, in both cases the IAA said that it had considered those parts of the submissions which did not constitute "new information", which must have included the limited submissions which truly related to the individual circumstances of the two referred applicants. There is no reason to doubt the veracity of those statements.
76 Thirdly, it is difficult to understand in the circumstances of these two proceedings the legal basis for the primary judge's statement at [84] that the referral applicant "must have some opportunity to make submissions that new material should be considered". The reference to "new material" must be a reference to "new information" as referred to in ss 473DC to 473DE of the Act. There is a distinction between submissions and "new information" as referred to therein (see CLV16 at [51] per Flick, Griffiths and Perry JJ). The information in the submissions provided to the IAA in these two matters which in truth related to persons other than the appellants themselves could not qualify as "new information", not only for the reason given by the IAA as referred to immediately above, but also because on no view was the information "credible personal information" relating to the individual referred applicants, as required by s 473DD(b)(ii). Rather, it was personal information relating to other referred applicants for whom the representative acted. As to those small parts of the submissions which did relate to the personal circumstances of each of the respondents, this material was considered by the IAA (as it stated in both cases), but it ultimately found that it was not satisfied that the relevant statutory criteria were met.
77 Fourthly, I reject the respondents' contention that there was a relevant stultification of the performance of the IAA's review function because the effect of the representative's reckless or dishonest actions was to deprive the IAA of "the benefit of any meaningful submissions about the delegate was wrong (sic)". This does not accurately reflect the nature of the IAA's review. Although the referred applicants were told in both the Facts Sheet and the Practice Direction that they could provide a written submission on inter alia why they disagreed with the Department's decision, it is important not to lose sight of the fact that an IAA review is a de novo review and is not directed to correcting error on the part of a delegate (see [59] above). In any event, written submissions were provided by the respondents' representative and they were considered and analysed by the IAA, as is reflected in the IAA's recognition that parts of the submissions had been included in error and also in the IAA's explicit statements that it had considered other parts of the submissions. There is no basis for concluding that the IAA did not consider the remaining parts of the submissions which did not constitute "new information".
78 Fifthly, I do not accept the respondents' submission that the fraud thwarted the IAA's review. Unlike the position in SZFDE, the IAA did not proceed on the basis of a presumption of regularity. In both cases, it noted the evident error by the representative in including material in the submissions which related to persons other than the respective referral applicants. The fact that the IAA in both cases also proceeded, on an alternative basis, to consider that non-related material did not subvert the reviews. The IAA explained why, on that alternative basis, the material did not alter its analysis and conclusions. I reject any suggestion that the review processes were fatally tainted by the fact that the IAA did in fact consider and address all parts of the submissions. The position might be different if the IAA was not cognisant of the fact that material had been included in the submissions which did not relate to the particular referral applicant. Clearly that was not the case in either proceeding here.
79 Sixthly, for reasons given below in respect of issue 3 of the amended notices of contention, I do not accept the respondents' contention that, the IAA being cognisant of the representative's error, was obliged to contact the representative and, in effect, invite her to provide additional submissions which cured her error. There is nothing in Pt 7AA which imposes any such obligation. Nor is there anything in the Practice Direction which has that effect. As noted above, s 473FB(4) provides that if the IAA deals with a review consistently with the directions, it is not required to take any other action in dealing with the review (apart, of course, from complying with any relevant statutory requirement).
80 For these reasons, the representative's dishonest actions and misconduct did not have the effect of subverting or stultifying any imperative statutory function of the IAA under Pt 7AA and the primary judge erred in coming to the contrary view.