Minister for Home Affairs v DUA16

(a) DUA16 6 DUA16 arrived in Australia on 28 September 2012 as an unauthorised maritime arrival. It was not until early in 2016 that he came to be represented by Ms Rajasekaram. Ms Rajasekaram is a solicitor and was a registered migration agent since 2013. On 21 January 2016, the Department received a Form 956 advice from her, which stated that she acted for DUA16. Her involvement occurred after the Department invited DUA16 on 26 November 2015 to apply for one of two types of protection visa. 7 DUA16 swore a statutory declaration dated 13 January 2016 in support of his visa application. The statutory declaration was witnessed by Ms Rajasekaram. The visa application was accompanied by a Form 80, providing personal particulars for assessment, including character assessment. A considerable amount of other material was provided in support of the application. 8 DUA16's protection visa application was refused by the delegate by a letter dated 24 August 2016, a copy of which was provided to Ms Rajasekaram. The application was refused on the grounds that the delegate considered that DUA16 did not satisfy the relevant statutory criteria. Reasons were provided. 9 On 5 September 2016, DUA16 was informed that his matter had been referred to the IAA on that day. The Department's letter stated that it was important that the IAA be advised in writing if DUA16 wished to appoint a person to receive correspondence on his behalf or to act as his representative. He was provided with standard information regarding the IAA's operations, including copies of an information sheet entitled "What you need to know about the Immigration Assessment Authority (the Facts Sheet) and a Practice Direction made under s 473FB of the Migration Act 1958 (Cth) (Act). 10 By a form dated 27 August 2016, which was attached to an email dated 8 September 2016 from Ms Rajasekaram to the IAA, DUA16 advised the IAA that he had appointed Ms Rajasekaram as his representative and authorised recipient. 11 The notification of appointment was accompanied by a written submission prepared on behalf of DUA16 by Ms Rajasekaram. The submission commences with an explicit statement that: "The applicant seeking review has instructed as follows…". The submission, which is a little more than four pages in length, in fact says little regarding DUA16's personal circumstances. It briefly states that adequate consideration had not been given to the applicant as a failed asylum seeker or to the fact that he had lost his parents in the war and one of his brothers was still missing. These matters broadly and accurately reflect DUA16's personal circumstances. That is to be contrasted with the statements which appear later in the submission that DUA16 was "perceived to belong to the social group the LTTE and is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA" and that his "brother who was arrested along side (sic) him has successfully sought asylum in Canada". At [38] the submissions stated that: The decision maker has failed to consider the personal and attended (sic) circumstances of the applicant while reaching a decision. The latest UNHCR guidelines specifically lists media personalities and ex-police men (sic) as "at risk profiles" (the applicant belongs to both groups)… None of these statements reflects DUA16's personal circumstances or claims. They appear to relate to another referred applicant. 12 Extensive supporting material, in the nature of country information, was also provided by DUA16's representative. Viewed overall, the submission principally dealt at a generic level about the risk of persecution and harm by Sri Lankan asylum seekers generally. 13 By an email dated 5 December 2016 addressed to Ms Rajasekaram, the IAA advised that it had affirmed the delegate's decision. A copy of its reasons dated 2 December 2016 was also provided. The reasons refer to the submission received by the IAA, as well as the country information which had been provided by the representative. The IAA said that the country information reports predated the delegate's decision and that there were no exceptional circumstances which justified the material being considered by it under s 473DD. 14 The IAA noted that the submission raised matters not previously put forward by DUA16 and that the IAA suspected that this part of the submission actually referred to another applicant and was included in the submission in error. The IAA then added that if the information did relate to DUA16, it was not apparent why it had not been put to the delegate and, in those circumstances, the new information would not be considered because the relevant requirements were not met and there were no exceptional circumstances to justify its consideration. 15 It is desirable to set out in full [7] of the IAA's reasons (emphasis added): 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, has been arrested and detained, and sexually abused. It states that his brother, who was arrested "alongside him", has sought asylum in Canada. None of these claims have ever been put forward by the applicant. The information about the brother is inconsistent with the applicant's own claims about his brother. I suspect that this part of the submission actually refers to another applicant, and appears in this submission in error. In any case, however, even if this information does relate to the applicant, it is not apparent why the information was not provided to the delegate before the decision was made. No explanation has been provided. The applicant was legally represented in relation to the SHEV application and at the SHEV interview, where he was asked a number of times whether he had provided all information he wished to rely on. In these circumstances, I am not satisfied that the requirements of s 473DD(b)(i) are met in respect of this new information. Nor am I satisfied that there are any exceptional circumstances which justify its consideration. 16 It is also significant to note that, at [8], the IAA stated that "the submission restates the applicant's claims and puts forward legal arguments addressing the delegate's decision. As this is not new information, I have considered these aspects of the submission" (emphasis added).

(b) CHK16 17 CHK16 arrived in Australia on 27 August 2016 as an unauthorised maritime arrival. On 10 September 2015 he was invited by the Department to apply for one of two kinds of protection visa. By a letter dated 19 October 2015 and signed by Ms Rajasekaram, CHK16 applied for a temporary protection visa. At the same time, Ms Rajasekaram forwarded a completed copy of a Form 956 advice, which indicated that she acted for CHK16. The material provided to the Department included a completed application for the visa and a statutory declaration dated 19 October 2015 which was witnessed by Ms Rajasekaram. The material also included a completed Form 80 (personal particulars for assessment including character assessment) which was signed by CHK16 on 19 October 2015. A considerable amount of other material, including country information, was provided in support of the visa application. 18 By a letter dated 18 November 2015 sent to Ms Rajasekaram, the Department acknowledged receipt of a valid application for a temporary protection visa by CHK16. 19 By a letter dated 14 June 2016, both CHK16 and Ms Rajasekaram were notified that the delegate had refused the application for a temporary protection visa on the basis that the delegate was not satisfied that CHK16 satisfied the relevant statutory criteria. Reasons were provided. 20 By a letter dated 17 June 2016, CHK16 was informed that his matter had been referred to the IAA on 16 June 2016. He was told that he should advise the IAA in writing if he wished to appoint a person to receive correspondence on his behalf or to act as his representative. He was given copies of both the Facts Sheet and Practice Direction relating to the IAA. 21 By an email dated 27 June 2016, Ms Rajasekaram provided the IAA with an authorised recipient form, a written submission on behalf of CHK16 prepared by her and extensive country information. 22 As was the case with DUA16, the submission, which is a little more than four pages in length, commences with the statement that: "The applicant seeking review has instructed as follows…". As also was the case with DUA16, the submission said virtually nothing regarding CHK16's personal circumstances. The submission did state at [38] that the delegate did not give consideration to the fact that the applicant is a young Tamil male and that his fear is displayed "in the form of nightmares, inability to sleep, depression, inability to eat, in (sic) more Post Traumatic Stress Disorder type of symptoms". The reference to the applicant being a young Tamil male was correct but the balance of that statement may refer to another referral applicant. Other statements in the submission, although purportedly relating to CHK16's personal circumstances, actually related to the circumstances of another applicant. This is reflected, for example, in the statements in the submission referring to: (1) the applicant "had and still has insider information on the way the police force and it's (sic) human rights or rather lack of human rights practices (sic)"; and (2) the applicant's fears that as a "traitor" of the State and Sri Lankan Government, he faced a "denial of capacity to earn a livelihood as a police officer of Sri Lanka or in any other capacity where such hardship or denial threatens the applicant's capacity to subsist". 23 Moreover, at [38], the submission stated that the delegate had "failed to consider the personal and attended (sic) circumstances of the applicant" and that the "latest UNHCR guidelines specifically lists media personalities and ex-police men (sic) as 'at risk profiles' (the applicant belongs to both groups)…". In fact, CHK16 never claimed to have been a policeman or a media personality. Nor did he claim to have been a traitor or have inside information on the police force and its human rights practices. Other claims made in the submission with purported reference to his individual circumstances were in truth not made by him but related to claims made by another applicant for whom Ms Rajasekaram had acted. 24 By a letter dated 4 August 2016 which was sent to Ms Rajasekaram, the IAA advised that the referral had been unsuccessful. A copy of the IAA's reasons dated 4 August 2016 was attached. The IAA referred to the submission provided to it by CHK16's representative. It said at [4] to [7]: 4. The applicant's representative provided a submission to the IAA. 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 and I have had regard to the submission in this regard. The submission contains generic reference to the application of legal provisions relating to protection visa assessments in Australia, some of which relate more specifically to protection visa applications made prior to legislative amendments to the protection visa framework in December 2014. Nevertheless, I have considered those legal submissions in my assessment of the applicant's claims insofar as they apply to his this (sic) case. 5. Of some concern is the fact that despite clearly referring to the applicant, the submission contains reference to clams that appear to have no logical bearing or connection to the applicant. Specifically, the submission contains reference to the applicant having a profile as a media personality, his political opposition to the Sri Lankan Army and its human rights practices (or for being anti-government), his status as a human rights student at university, a former member of the Sri Lankan police force and/or as a traitor. The applicant has made no earlier claims to fear harm on any of these bases. The evidence before me does not indicate he is a media personality, a member of the police force, that he studies human rights, or is politically opposed to the government in anyway, other than the existing claim that he was falsely accused or providing assistance to the LTTE. I am satisfied that these references are not intended to be new claims or information 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. In the alternative, even if it were to be regarded as new information, the submission does not address why the information could not have been provided before that time, or how it is credible personal information. In terms of the latter, this information does not appear to relate to the applicant at all. In the circumstances, I am not satisfied that the information falls within s 473DD(b)(i) or s 473DD(b)(ii) or that there are exceptional circumstances to justify considering the information. 6. In addition to the legal submissions that do relate to the applicant, there is reference to country information on the situation in Sri Lanka. Some of that country information was submitted to the delegate and is not new information and it has been considered. Other references are to new information not before the IAA. Specifically, a January 2016 report from the International Truth & Justice Project Sri Lanka; an August 2015 report from "Freedom from Torture". Reference is also made to a 24 March 2011 article from the Guardian; a September 2014 article from the SBS (Australia); a February 2013 Human Rights Watch Report, Freedom from Torture reports relating to 2009-2011 and 2014; and a briefing by the Human Rights Law Centre on Sri Lankans forcibly returned due to Enhanced Screening. Those documents were not attached to the submission, nor quoted in detail. Reference is also made to recommendations by the UN Special Rapporteur on Torture and the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution, however these are not cited. 7. No submission were made by the representative on the application of s 473DD of the Act. Each of the reports and articles referenced predate the delegate's decision and the applicant has not satisfied me why these reports could not have been provided to the delegate before the decision was made. There is also nothing before me that indicates that the reports contain credible personal information. Furthermore, in view of all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering the new information. 25 As was the case with DUA16, the IAA expressly stated in [4] of its reasons for decision that it had had regard to those aspects of the submission which emphasised aspects of CHK16's claims. 26 In the present appeals to this Court, copies of the multiple submissions prepared by Ms Rajasekaram relating to other referral applicants for whom she acted were included in the Supplementary Appeal Book.

The FCCA proceedings 27 The FCCA found that Ms Rajasekaram provided both DUA16 and CHK16 with the documents which they initially filed in the FCCA seeking a judicial review of the IAA's decisions. These filed documents did not identify Ms Rajasekaram as the representative of either judicial review applicant. Both DUA16 and CHK16 then obtained legal representation by another firm. Amended applications for judicial review were filed which raised the relevance of Ms Rajasekaram's own conduct as a ground of judicial review. 28 The primary judge rejected the Minister's contentions that Ms Rajasekaram's conduct went no further than "negligence" and could not be categorised as fraud in the relevant sense. His Honour also rejected the Minister's contention that, even if the conduct was fraudulent, it did not stultify the IAA's process because the IAA found that the submissions did not appear to be about either DUA16 or CHK16 respectively and it refused to consider the submission as new information under s 473DD of the Act. After summarising and making findings in respect of Ms Rajasekaram's conduct, the primary judge made the following key findings: Ms Rajasekaram was a most unimpressive witness who not only failed to live up to expectations of her as a solicitor and migration agent but a person who also gave false evidence to the FCCA. She was not accepted as an honest witness ([57]); Ms Rajasekaram did not believe that the two cases were strong and she "just went through the motions of providing documents" ([58]); the creation of the submissions to the IAA was not explicable as "mere negligence" because substantially the same submissions were used in around 40 cases and, by their very nature, the submissions were meant to be unique to the particular referral applicant ([59]); and "At best the conduct in creating the documents was reckless, and at worst dishonest" ([60]). 29 The primary judge also viewed the following surrounding circumstances as being relevant: Ms Rajasekaram had been dishonest in her evidence before the Court; she has created false documents to provide to the parties; she kept no notes of her interviews with the appellant; she did not appear to have complied with her professional obligations with respect to accounts; and she took no steps to ensure that her clients would not suffer further losses as a result of her default ([61]). 30 The primary judge said that, viewing Ms Rajasekaram's conduct as a whole, it appeared that she had no intention of properly carrying out her professional task of preparing submissions to the IAA on behalf of the two respondents, however, he was not persuaded that she had "actively set out to deceive the IAA". Rather, on balance, "she simply did not care" ([62]). 31 At [63], the primary judge said: The result was that submissions were made to the IAA that did not reasonably reflect the cases of either applicant. In this respect she was not honest in her dealings with her clients, and acted without any concern as to whether the documents sent to the IAA were true or false. The effect of the conduct was that the applicants substantively lost the last (and very limited) opportunity available to them to place submissions or evidence before the IAA. 32 The primary judge found that neither DUA16 or CHK16 was aware of their representative's defaults, nor had they acquiesced in, or were indifferent to, her "misconduct" (at [81]). 33 It is also desirable to set out [82] of the primary judge's reasons for judgment in its entirety, as its patently incomplete nature is relevant to the Minister's complaint that the reasons are inadequate: Counsel for the Minister argues that regardless of the findings set out above, the conduct of the solicitor did not stultify the performance of the IAA's function. It was argued that: The information and submission. 34 The primary judge found that the IAA's conclusions regarding the submissions provided to it meant that it did not consider irrelevant or extraneous material and that it was not misled by any extraneous material. Moreover, the primary judge found that the representative's conduct did not result in the IAA being prevented from considering material already before it (at [83]). However, the primary judge described what he regarded as the relevant error at [84]: However, the task of the IAA is broader than merely considering the material provided to it by the Secretary. The IAA must also consider whether to 'get' or receive 'new information'. In order to do so applicants must have some opportunity to make submissions that new material should be considered. It was this opportunity that was lost to the applicants due to the conduct of their solicitor. Of course, unlike other visa types, no remedy other than judicial review is of assistance to applicant's (sic) for protection visas: monetary compensation is inherently inadequate for the loss of a chance to avoid serious harm or death. 35 Even though the primary judge did not find that the representative had set out actively to prevent her clients from engaging in the IAA process, the effect of her conduct was found "to thwart a real or substantive engagement by the applicants with the IAA". Moreover, her conduct "exhibited an element of dishonesty in [her] dealings with the clients, and recklessness in her dealings with the IAA" (at [85]). 36 It was for these reasons that the FCCA quashed the IAA's decisions in both matters and remitted the matters to the IAA to rehear according to law.

(a) The appeals - fraud (ground 1) 37 A central issue in both appeals relates to the circumstances in which the conduct of a representative of a referred applicant in Pt 7AA proceedings may vitiate the IAA's decision. 38 The parties were agreed that the leading authority is SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189. It must be emphasised at the outset, however, that the issue of the legal significance of fraudulent conduct on the part of a representative arose there, not in the context of a Pt 7AA referral, but rather in the context of a review by the then Refugee Review Tribunal (RRT) under Pt 7 of the Act, where s 425(1) was significant. Nor was Pt 7AA relevant in several Full Court decisions concerning fraud in other statutory administrative review contexts, such as Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398; Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1 and Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53. That is not to say that some general observations in those cases relating to fraud in a public law context are not relevant to these appeals. It is important, however, not to lose sight of the fact that the statutory framework under Pt 7AA is different from those which were considered in these authorities. 39 The High Court held in SZFDE that the conduct of a person (described as a "rogue"), who wrongly claimed to be entitled to practise as a solicitor and migration agent, had the effect that the RRT's decision was vitiated and should be set aside. This was because the fraudulent conduct had the effect of subverting or stultifying imperative statutory functions of the RRT, specifically the natural justice provisions in Div 4 of Pt 7 and, in particular, ss 425 and 426A. The fraudulent conduct related in part to the rogue's wrongful claim to be entitled to practise as a solicitor and migration agent, despite the cancellation of his practising certificate and registration as a migration agent some months previously. In advising the RRT review applicants not to attend the RRT hearing, the Court found that he acted for his own self-protection and to avoid the RRT learning of his apparently unlawful conduct in providing migration advice in contravention of s 281 of the Act. 40 Importantly, the Court emphasised at [29] that close attention had to be paid to the "nature, scope and purpose of the particular system of review by the [RRT] which the Act establishes and the place in that system of registered migration agents". Section 425 (which obliged the RRT to invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review) was of central importance in this regard (as was also s 426A which set out the consequences of a failure to appear following an invitation under s 425). The High Court concluded at [49] that the rogue's fraud had the immediate consequence of stultifying the operation of the legislative scheme which was intended to afford natural justice to the review applicants. That was because the RRT dismissed the review on the basis that the review applicants had not provided any further information in support of the claims for protection, despite notice from the RRT that it was unable to make a favourable decision on the material before it. 41 The following relevant features should be noted of the Court's discussion in SZFDE of the concept of "fraud" in a public law context. 42 First, emphasis was placed upon differences concerning the place of fraud in public law, as opposed to equity or common law. As stated at [13], principles of public law concerning impropriety and exercise of statutory powers have not had what the Court described as the "red blooded" species of fraud which engages the common law. In contrast with fraud in private law concerning the creation and protection of personal and proprietary rights in inter partes litigation, the concern in a public law case such as SZFDE was the "due administration of the provisions of the Act respecting protection visas and procedures for review by the Tribunal of decisions on visa applications". That concern with the due administration of the laws of the Commonwealth was identified as having an "important constitutional underpinning" (at [11] and referring, inter alia, to Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [103]-[104]). 43 Secondly, the Court emphasised that the vitiating effect of fraud is not universal throughout the law and that the notion of "fraud unravelling all" needed some modification in a public law context. The Court stated at [22] that in a public law case, such as that appeal, the only remedy of any real utility was an order which provided the review applicants with the opportunity to press their claims to a protection visa in a fair hearing conducted according to law. 44 Thirdly, and significantly, the Court emphasised at [28] that it was unnecessary for the purpose of resolving the appeal there "to determine at large and in generally applicable terms the scope for judicial review for 'third party fraud' of an earlier administrative decision…". Presumably, this was because the factual and statutory contexts in which the issue could arise are so diverse. As already emphasised, each case necessarily has to be considered and determined by reference to the particular facts and the particular statutory context in which the issue arises. 45 Fourthly, and related to the previous point, at [8], the Court agreed with Lord Macnaghten's view in Reddaway v Banham [1896] AC 199 at 221 that "fraud is infinite in variety" and that it is impossible to define the concept exhaustively in advance. As will shortly emerge, however, the Court viewed the "dishonest acts and omissions" or "misconduct" of the kind engaged in by the rogue there as constituting fraud, which subverted or stultified the relevant statutory review process. 46 Fifthly, a finding of fraud should specify what conduct was fraudulent, how it was fraudulent, and how it was acted upon (at [41]). Such precision is necessary not only to determine whether particular conduct is in fact fraudulent in the relevant sense, but also to determine if, and how, it has subverted or disabled an imperative statutory function. 47 Sixthly, while the Court expressed agreement with the dissenting view expressed below in the Full Court by French J that there were sound policy reasons why mere bad or negligent conduct or some other mishap by an agent should not vitiate a review proceeding, the Court proceeded on the basis that the conduct of the agent in that case stood apart from such considerations (at [53]). Conduct which involved "dishonest acts and omissions" (at [14]) or involved "misconduct" of the kind demonstrated by the rogue in that case (at [36]), could amount to conduct which had the effect of subverting the relevant review process. The Court said at [51] (emphasis added): No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal. 48 I have emphasised these features of SZFDE because they provide a principled framework within which the Minister's first two grounds of appeal should be determined. In particular, as will emerge, they highlight why ground 1 should fail and why ground 2 should succeed. It is sufficient at this point to focus on the significance of SZFDE to ground 1. 49 SZFDE demonstrates that the concept of fraud can involve dishonesty and misconduct on the part of a representative, as is reflected in the language used by the Court at [14] and [36], where those terms are used. This is important, because a large part of the Minister's complaint underground 1 is the proposition that the FCCA did not make an explicit finding of fraud on the part of Ms Rajasekaram. In my respectful view, the primary judge's findings that Ms Rajasekaram's creation of the IAA submissions was "reckless, and at worst dishonest", as well as being "misconduct" and that she was "not honest in her dealings with her clients" are sufficient to characterise her conduct as involving fraud. With respect to the specific conduct impugned as vitiating the IAA review, the primary judge found at [58] that the representative concealed from the respondents that she intended to use a pro forma submission, believing that had she disclosed that to them, they would not have been prepared to pay for her professional services. The representative's dishonesty is also reflected in the fact that she falsely represented to the IAA that the submissions reflected her client's instructions, as was stated in the first sentence of each submission and was further reinforced by a subsequent heading on page 1 of both submissions respectively: "Submissions on behalf of the applicant". 50 The primary judge's finding that the representative's conduct was, in effect, recklessly indifferent, was well open to him. Even though the primary judge found that the representative did not actively set out to deceive the IAA, a finding of reckless indifference in the particular circumstances here is sufficient to found a finding of fraud in the relevant public law sense (see Kaur at [129] to [152] per Murphy, Mortimer and O'Callaghan JJ). 51 In the particular circumstances here, no relevant significance attaches to the fact that the primary judge preferred to use the terminology that he did in describing the representative's conduct, as opposed to the particular term "fraud". All the more so in circumstances where the primary judge made plain at [3] of his reasons for judgment that the central issue in the proceedings was whether the representative's conduct "was such as to constitute a fraud on the decision-maker" in the sense discussed in SZFDE. 52 The Minister's approach to the primary judge's application of this aspect of SZFDE to the circumstances here reminds one of the danger of reading literal words in a particular judgment of a Court instead of searching for the underlying applicable principle. In Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248, McHugh JA (as his Honour then was) drew attention to Lord Reid's observations in Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, where his Lordship said (emphasis added): … experience has shown that those who have to apply the decision to other cases and still more those who wish to criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if they were provisions in an Act of Parliament. They do not seem to realise that it is not the function of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive. 53 Essentially the same point was made recently by Chief Justice Allsop in his Harold Ford Memorial Lecture entitled "The Intersection of Companies and Trusts", which was delivered on 26 September 2019. At page 5, the Chief Justice said: Taxonomy and organisational structure of categories have their important place, but there is an ever-present danger that taxonomy and categories will direct or drive conclusions through mechanical application, rather than merely assisting to organise principles to reach conclusions by reference to principle. 54 Although the primary judge did not make an explicit finding of fraud, his characterisation of Ms Rajasekaram's conduct involved an implicit finding of fraud. More importantly, at least on this particular matter, the primary judge correctly understood and applied the principles regarding the first limb in SZFDE. For these reasons, I reject ground 1 of the notice of appeal. 55 That is not to say, however, that the appeal should fail. That is because, for reasons which relate to ground 2 of the appeal, I consider that the primary judge misapplied the second limb of SZFDE, namely that which focuses upon whether the conduct constituted a fraud "on" the IAA by subverting or stultifying an imperative statutory function under that review scheme.

(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.

(c) The appeals - inadequate reasons (ground 3) 81 There is a helpful summary of some of the relevant principles in determining whether or not the reasons for judgment of a Judge of the FCCA are inadequate in Kaur at [163]-[193] per Murphy, Mortimer and O'Callaghan JJ (see also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175). The relevant authorities were summarised by the Full Court in Kaur at [177] as follows: All of these statements constitute little more than general guidelines. What is adequate, or inadequate, in any given case will depend on the nature of the proceeding, the evidence and arguments put forward, and the nature of the issues to be determined. However, the following relevant propositions emerge from the authorities: (a) The more serious the consequences of a proceeding, or the more serious a finding, the more a judge may need to explain why she or he reached a conclusion or finding; (b) In some circumstances, it may not be necessary for a judge to explain in great detail a finding of adverse credibility, where it is based on demeanour; and (c) If a judge disbelieves evidence which is uncontradicted, reasonable and inherently probable, he or she may be required to give more detailed reasons for disbelieving that evidence. 82 In Kaur at [190] the Full Court also approved the following statements by Griffiths J in COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; 259 FCR 1 at [32] and [33]: [32] The Minister accepted that a failure by a judge to give adequate reasons may amount to an error of law, citing authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Mifsud v Campbell (1991) 21 NSWLR 725 and SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582 (SZKLO) at [26] per Flick J. In SZKLO, Flick J identified the following reasons for requiring judges to provide adequate reasons for their decisions: (a) the obligation arises as a matter of judicial duty and enables an appeal court to determine whether or not the primary judge's decision was or was not affected by error of law or an appealable error (at [19]); (b) the failure to provide adequate reasons may lead to a real sense of grievance by the unsuccessful party who does not know or understand why the decision was made (at [19]); and (c) the need to maintain public confidence, respect and faith in the judicial system, recognising that lower courts play an important role as they have to deal with so much work and usually come into contact with more litigants than do higher courts (at [20]). [33] In SZKLO Flick J said the following at [26] with respect to the requirements of the reasons of a primary judge in exercising a judicial review jurisdiction: 26 Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant - or this Court - is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision. 83 There are some inadequacies in the primary judge's reasons for judgment here. They include the patently incomplete nature of [82], which is set out at [33] above. 84 The Minister contended that the reasons were inadequate in other ways, including the lack of particularisation by the primary judge in concluding that the representative's conduct in creating the submissions was "reckless, and at worst dishonest" and "exhibited an element of dishonesty" in her dealings with her clients and the IAA. Moreover, the Minister complained that the primary judge failed to explain the relevance of the "surrounding circumstances" identified in [61] of his reasons for judgment and that no explanation was provided as to what he meant when he said at [62] that the representative did not intend "properly" to carry out her task of preparing submissions to the IAA. 85 The primary judge's reasons for judgment are not a model of perfection as is reflected most clearly in the incomplete nature of [82], but it is important not to impose an unduly onerous standard. In Kaur, after referring to some inadequacies in the FCCA's reasons there, the Full Court emphasised at [192] the need to take into account the heavy workload of Judges in the FCCA and the need for them to determine cases under pressure and expeditiously. The Full Court acknowledged that it is easy for an appellate court "to be critical, in hindsight, and spend much time pouring over a set of reasons, and that is not the context in which the reasons were written". 86 I am not persuaded that the Minister has demonstrated that the primary judge's reasons are merely conclusory and do not adequately reveal the underlying reasoning or that the case was disposed of with undue brevity. Although [82] of the reasons is patently incomplete and some material has inadvertently been omitted, it is significant that the subject matter of the paragraph was a summary of counsel's argument. The failure to complete that summary does not mean that the primary judge failed to take the argument into account. In my view, the primary judge adequately explained why he concluded that the representative's conduct amounted to fraud and why he also found (erroneously) that the fraudulent conduct stultified the IAA's statutory function. I am not persuaded that the primary judge's reasons are so inadequate as not to constitute a lawful discharge of the FCCA's obligation to give reasons. I reject the Minister's third ground of appeal.

(c) The amended notices of contention - common issues 87 The three common issues will now be addressed and determined.

(a) Issue 1 - Fraud on respondents not a necessary prerequisite 88 The respondents acknowledged that this issue arises only if the Full Court accepted ground 1 of the Minister's notice of appeal. That ground of appeal has been rejected. Accordingly, it is unnecessary to determine issue 1 of the amended notices of contention.

(b) Issue 2 - Stultification 89 The respondents stated that their submissions on this issue were the same as those made by them in response to ground 2 of the Minister's notices of appeal. For the reasons given above, that ground of appeal should succeed. It is therefore unnecessary to say anything further about it or issue 2 of the amended notices of contention.

(c) Issue 3 - Constructive failure to exercise jurisdiction regarding s 473DC or to make necessary inquiry 90 The respondents contended that the primary judge should have inferred in each of the matters that the IAA did not consider exercising its discretion to obtain new information and that this should have been done by contacting the respondent's representative "to obtain the correct submissions". The contention has only to be stated, to be rejected. That is because it is based on a flawed premise, namely that "submissions" are "new information" within s 473DC. For the reasons given above, they are not. 91 Perhaps in recognition of this fundamental difficulty, the respondents contended in the alternative that the IAA's failure to contact the representative about the inclusion of obvious irrelevant material in the submissions amounted to a constructive failure to exercise jurisdiction, citing Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [49] to [51] per Nettle J and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429. 92 I reject these contentions. First, as noted above, there is nothing in either Pt 7AA or the Practice Direction which imposed any such obligation on the IAA. Moreover, as also noted above, as long as the IAA deals with a review consistently with the Practice Direction, it is not required to take any other action in dealing with the review (apart from complying with any relevant statutory requirement). The circumstances here are far removed from those in Wei or, indeed, SZIAI. 93 Secondly, as mentioned, the respondents were advised, and were aware, that they could provide submissions to the IAA. They did so relying on their representative. Notwithstanding that the IAA appreciated that there was material included erroneously in the representative's submissions, the IAA did not know whether or not there were further submissions which the respondents wished to make. The submissions which had been provided contained at least some, albeit limited, information relating to the respondents' individual personal circumstances. For that reason, the IAA cannot be said to have known it had a "incorrect document" or that there was another "correct document" that was readily obtainable. Rather, as the Minister submitted, an available and natural inference was that the representative had forgotten to delete information from a precedent submission relating to another client. There was nothing in the submissions themselves or in the surrounding circumstances more generally to indicate to the IAA that the referred applicants might wish to make additional submissions. It is to be recalled that both submissions explicitly commence with the statement: "The applicant seeking review has instructed as follows:…". It is important to note in this context that the material which was forwarded to the IAA as required by s 473CB included a copy of all the material before the delegate in both cases, including the submissions provided by the respondents at that stage of the decision-making process. 94 In the particular facts and circumstances of these matters, there was no legal obligation on the IAA to do what the respondents now contend.

Conclusion 95 For these reasons, the appeals should be upheld and the amended notices of contention dismissed. The Minister asked for an opportunity to file short written submissions on the question of relief if the Court identified appealable error. It was clarified in oral address, however, that this opportunity was sought only if the Minister succeeded on ground 3 of his appeal. 96 In the circumstances, I consider that the Court should proceed to make orders as outlined above, together with an order that the respondents pay the Minister's costs of and incidental to the appeals. The orders of the FCCA should be set aside. It is noted that the FCCA made no order as to the costs of the proceedings before it. It remains a matter for the FCCA to finalise the question of costs of those proceedings if the parties so wish. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

MORTIMER J: 97 I have had the advantage of reading the draft reasons for judgment of Griffiths J. His Honour's reasons relieve me of the need to set out the factual and procedural background to the appeals, and the parties' arguments. I gratefully adopt what his Honour has set out about those matters. 98 I respectfully disagree with his Honour on the outcome of the appeal on ground two. I otherwise agree with his Honour's conclusions about appeal grounds one and three, and about the respondents' amended notices of contention on issue one. I also respectfully agree with Griffiths J's conclusion, and reasons, for not upholding issue three of the amended notices of contention. That said, some of the respondents' submissions on issue three are of relevance to my reasoning on ground two of the appeal. 99 As Griffiths J points out, issue two of the amended notices of contention is directed at the same point as that advanced to resist the Minister's appeal ground two. Given that my reasoning differs somewhat from that of the primary judge, I would also uphold issue two of the amended notices of contention. 100 The point of substance which arises on ground two of the appeal in each proceeding is how the principles set out by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 are to be applied in the context of a review by the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth). In particular, and the matter which causes me to reach a different conclusion from Griffiths J, in what circumstances can it be said that the fraudulent conduct of the representative of a visa applicant in how the visa applicant's case is put to the IAA stultifies, disables or subverts the imperative function of the IAA to "review" the decision of the Minister's delegate?

Ms Rajasekaram's fraud 101 I agree with the observations of Griffiths J at [38]-[53], in relation to findings of fraud involving the exercise of public power. I also agree with his Honour's conclusion at [54] that in the present cases, although the primary judge did not make an explicit finding of fraud, that is clearly what his Honour had in mind, by reference to the concept of recklessness: see also Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 at [129]-[152] (Murphy, Mortimer and O'Callaghan JJ). 102 My reasoning proceeds on the basis of my agreement with the primary judge, and with Griffiths J (see [49] of his Honour's reasons, including his observations about how the primary judge's reasons should be understood), that what Ms Rajasekaram did amounted to a fraud on her clients, the respondents in these appeals. She dishonestly represented to the respondents that she would make submissions on their cases as individuals in return for the fees they paid her, concealing from them that she would use a template submission, with information that had no bearing on their cases. She dishonestly purported to take instructions from them on the basis she would be representing what they said to the IAA, but then instead represented to the IAA that what was in the filed submissions were the respondents' instructions, when that representation was false. She was recklessly indifferent to the truth and accuracy of the filed submissions.

The approach to the effect of the fraud on the repository of public power 103 In Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; 154 FCR 365 at [104]-[124], French J (as his Honour then was) comprehensively explained the development of the concept of fraud in public law, as part of his dissenting judgment on this aspect of the Full Court appeal. Justices Allsop and Graham dismissed this aspect of the respondents' arguments. The conclusions of French J were upheld by the High Court in SZFDE. With respect, the whole of his Honour's reasons on this aspect repays careful reading, but there are some particular parts I wish to emphasise. The point of doing so is to demonstrate that there are many different examples of how fraudulent conduct may have an effect on an exercise of public power sufficient to vitiate the exercise of power, and that some of those examples arise in circumstances where what is "vitiated" is described as the ultimate exercise of power, rather than any specific statutory process or component of it. 104 At [109] of his reasons, his Honour referred to a Full Court decision of this Court, Leung v Minister for Immigration and Multicultural Affairs [1997] FCA 1313; 79 FCR 400: A decision of the Full Court of the Federal Court in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 concerned the power of the Minister to revoke citizenship granted on a misrepresentation. There was discussion by Finkelstein J, with whom Beaumont J agreed, about the power of the minister to change his mind and revoke the decision granting citizenship and to treat it as invalid on the basis that it had been made on a misrepresentation. Finkelstein J concluded (at 416): The Minister has now discovered the true position and, whilst not wishing to allege that the appellants were guilty of fraud, has "revoked" the certificates granted to them and treated that revocation as a refusal of their application for certificates under s 13(1). There is no doubt that the Minister was entitled to take these steps. No statutory power was required. The original decisions having been obtained by a misrepresentation, were not decisions made in the true exercise of the power conferred by s 13(1) and can be treated as having no effect. See also Jones v Commissioner of Police (1990) 20 ALD 532 in which Carruthers J held a decision made by the Commissioner of Police under the Police Regulation (Superannuation) Act 1906 (NSW) involved an act of deception by the police officer who received the benefit of the decision (cf Transport Accident Commission v Dohnal (1996) 25 MVR 232). Carruthers J invoked the dictum of Denning LJ in Lazarus Estates. There is a brief discussion of these cases in Campbell, E, "Effect of Administrative Decisions Procured by Fraud or Misrepresentation" (1997) 5 AJAL 240-247. (Emphasis added.) 105 At [113], French J referred to the first of two reported cases his Honour discussed where certiorari was used to quash an order of an inferior court: In Hallahan v Campbell; Ex parte Campbell (No 2) [1964] Qd R 337 the Full Court of the Supreme Court of Queensland accepted that a statement prepared by police and read to the Magistrates Court upon a plea of guilty to vagrancy misstated facts adversely to the defendant. Stanley J concluded that "whether by deliberate intention or mere recklessness the statement submitted to the magistrate in this case amounted to a fraud on the court". He ordered certiorari. Hart J, who thought the statement deliberately false, agreed that certiorari should issue as did Lucas AJ. Both referred to the passage from the judgment of Singleton J in R v Leicester Licensing Justices; Ex parte Wood quoted earlier in these reasons. (Emphasis added.) 106 The reference to Wood was to a case French J had described and quoted from at [105] of his Honour's reasons, where Singleton J said (at 728): In the present case the order of the inferior court was obtained by fraud and perjury, and, as far as I know, procedure by certiorari is the only one which can be adopted to put right the wrong which has been done. 107 Having then discussed (at [118]-[120]) two Administrative Decisions (Judicial Review) Act 1977 (Cth) cases dealing with decisions under the Migration Act (namely Wati v Minister for Immigration and Ethnic Affairs [1996] FCA 1043; 71 FCR 103 and Jama v Minister for Immigration and Multicultural Affairs [2000] FCA 524; 61 ALD 387), French J concluded at [122]-[123]: Fraud and "analogous circumstances" will justify the grant of certiorari if they "distort" or "vitiate" the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances. There was support for that approach in Barrett. The distortion can occur in more than one way. A decision-maker may be misled by false material dishonestly put before it. Relevant material favourable to a person to be affected by the decision may be deliberately and dishonestly withheld by a third party who would reasonably be expected to disclose it either in the discharge of a statutory duty or by reason of that party's official responsibilities in the administration of the decision-making process. In either case the decision-making process can be said to have been distorted by fraud in a way that induced or affected the decision. The English authorities would support an extension of that proposition to a class of case involving the tender of misleading material or the non-disclosure of favourable material even though no dishonesty was involved. Where a decision-maker acts upon a false impression created as the result of a fraud affecting the conduct of a party before it, then the resulting decision can be said to be induced or affected by the fraud. So a response to an invitation to an oral hearing where the response is in the negative and constitutes a consent to disposition without such a hearing may create the false impression that that consent was voluntarily given when in truth it was obtained by fraud. The proposition that fraud unravels everything in that case applies to the consent upon which the decision-maker acts as well as the decision which results. 108 Then, in light of a number of the authorities to which his Honour referred in his comprehensive review, but which I have not extracted, at [129] French J stated: There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person's participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case. In this case, on the findings made by the learned magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the Tribunal by the fraudulent advice of the migration agent. The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was "not accepting any visa applications at all at the moment". He expressed a false concern that if SZFDE and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice SZFDE's prospects of a successful outcome on the basis of a submission to the Minister. 109 The language used by French J was different to that used by the High Court in SZFDE, but not so different as to suggest that his Honour's approach was in any way inconsistent with the High Court's reasons for judgment. Indeed, aspects of his Honour's reasons were quoted with approval by the High Court. I have referred to his Honour's approach at some length because in my respectful opinion it assists in understanding why it may not be necessary to fasten on a particular statutory power and identify that as being the power which has been stultified or subverted. In some cases, the effect of fraudulent conduct on an administrative decision-making process may be an effect that is best described, as French J did, as "distorting" or "vitiating" the "approach" to be taken by the decision-maker, or the outcome or decision made. In my opinion, this is capable of supporting the respondents' contentions about the effect of Ms Rajasekaram's fraud on the "imperative function" of the IAA to conduct a review of the delegate's decision. 110 I do not see French J's analysis, in substance, as any different to an approach which describes the effect on the exercise of power as a "stultification", a "disabling" or a "subversion". Those were the three words used by the High Court in SZFDE, in the following passages: An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act. … The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. That this is so is manifest by the reasons given by the Tribunal, which included the statement: "The [first] applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention." … No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal. (Emphasis added and footnotes omitted.) 111 In both the Full Court's and the High Court's reasons in SZFDE, what was recognised is the need for an effect on the exercise of public power before the fraudulent conduct can sound in any relief granted by a Court. The commonalities in approach were acknowledged by the High Court at [47] of its reasons: French J correctly identified the ultimate issue as the effect upon the Tribunal's decision-making process, for which the Parliament provided in Pt 7 of the Act, of the fraud of Mr Hussain. (Footnote omitted.) 112 It is true that in the High Court's reasons at [51], that effect was expressly described by reference to the Tribunal being "disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review", and this might appear to be somewhat narrower than French J's approach. So too the other description in [51] of the "stultification" of the "critically important natural justice provisions". 113 However, in [32], the effect was more generally described by the High Court as a "subversion of the processes of the Tribunal"; and in [49] as "stultifying the operation of the legislative scheme to afford natural justice to the appellants". 114 There is no doubt that, as Griffiths J observes, the High Court in SZFDE emphasised that the "nature, scope and purpose of the particular system of review" established by the legislative scheme was the key consideration in understanding how, if at all, fraudulent conduct "unravels" an exercise of public power. 115 With great respect, in my view the same point is made in both sets of reasons, and there is no necessary prescription to be found in the language used by the High Court. Rather, that language is chosen to emphasise the need for the fraudulent conduct to affect the exercise of public power in a way which can justify a supervising court on judicial review setting at nought that exercise of power, so that the repository's jurisdiction is properly seen as "constructively unexercised" (see the High Court's reasons in SZFDE at [52]). For that to occur, and for a public law remedy to be granted, the effect must be of the same character as the effect of an error which can be described as jurisdictional, in the sense that term has been used in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 and Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, read in the context of what was said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. 116 In the present case and as Griffiths J has outlined, including by reference to the Full Court's decision in ALR17 v Minister for Home Affairs [2019] FCAFC 182 at [26], the legislative scheme of Pt 7AA imposes a number of restrictions and limitations on the conduct by the IAA of its review. In my respectful opinion, all of those restrictions and limitations are properly characterised as affecting the manner in which the IAA carries out its review, rather than as affecting the statutory task it performs. 117 The legislative scheme still imposes, as the core and "imperative" statutory function, a duty on the IAA of the kind relevantly described by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [17]: Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. (Emphasis added.) 118 By reason of the restrictions and limits placed on the manner in which the IAA performs its review, not all of French CJ's description in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10] about the review function of the (then) Migration Review Tribunal and Refugee Review Tribunal may be applicable. However, taking into account what was said in Plaintiff M174 at [17], aspects of it clearly are. For example, as French CJ put it in Li at [10], in undertaking a "review", the IAA "must identify for itself the issues that arise in the application before it" and it is not "confined to the issues considered by the delegate". Although the IAA may be confined, save for the "exceptions" in ss 473DC and 473DD, to the documents and information that were before the delegate, it is not confined to the "issues" identified by the delegate. Identifying, for itself, the issues on the review is part of its function of considering the visa application "afresh". 119 Considering "afresh" whether a visa applicant satisfies the criteria for a protection visa includes an active intellectual engagement with the factual narrative presented by an applicant of what has happened to her or him in the past, and what she or he fears may happen on return to the country against which the protection claim is made: see Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 162 ALD 427 (McKerracher, Murphy and Davies JJ); BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378 (Murphy J); DJB16 v Minister for Immigration and Border Protection [2019] FCA 1161 (Kerr J); GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463 (Thawley J). It includes consideration of material about the situation in the country against which the claim is made, but obviously the active engagement by the IAA with that material in the context of a particular review depends upon the IAA's understanding of, and opinions about, an applicant's individual circumstances, past and present, and her or his circumstances in the reasonably foreseeable future.

Application of those principles to the two appeals 120 For present purposes, it is the core obligation and imperative function of the IAA to consider the respondents' protection visa applications afresh which has been affected by Ms Rajasekaram's fraudulent conduct, whether the effect is described as "distorting", "vitiating", "subverting", "disabling" or "stultifying" the exercise of power by the IAA. For the reasons I set out below, the submissions which were filed by Ms Rajasekaram on behalf of each respondent had a sufficiently profound effect on the IAA's review function so as to result in its review function remaining constructively unexercised. 121 I reach that conclusion from a consideration of the context in which the submissions were made on behalf of the respondents to the IAA, the content of the submissions, and their role in each of these particular reviews by the IAA. 122 It is correct, as Griffiths J points out at [61] of his Honour's reasons, 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". The Full Court's decision in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 dealt with the circumstances in which the IAA may be required to consider submissions it has invited, and which have in fact been made to it. So too did the Full Court in DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146. The Minister submitted on these appeals that the Full Court in DNA17 may have applied principles applicable to other merits review bodies, such as the Administrative Appeals Tribunal, which are less readily applicable to the IAA. It is not necessary to reach any concluded view about that submission, nor about the circumstances in which there may or may not be a legal obligation on the IAA to consider submissions it has invited (whether directly or through its Practice Direction) and which have been made. 123 It is not necessary to do so because in these appeals, it is not disputed that: (a) the respondents were invited, through the Practice Direction (see [66] of Griffiths J's reasons) to make submissions to the IAA; (b) a set of submissions was filed by Ms Rajasekaram on behalf of each respondent; and (c) the IAA, differently constituted in each review, considered each set of submissions and referred to the submissions in its respective reasons. 124 In those circumstances, the submissions made by Ms Rajasekaram to the IAA on behalf of each respondent formed part of the IAA's reasoning on each review, and contributed to its conclusion on each review that each respondent did not satisfy the criteria for the grant of a protection visa. 125 In circumstances such as those in these two appeals, where submissions were invited by the IAA and were in fact made, the role played by those submissions on the review is what matters in the assessment of the effect of Ms Rajasekaram's fraudulent conduct. 126 Irrespective of how the Practice Direction describes the role of submissions (as to which see [77] of Griffiths J's reasons, with which I respectfully agree), properly understood in the context of the IAA's statutory task on a review, the role of any submissions in fact made on behalf of a referred applicant to the IAA, and accepted by the IAA, is to persuade the IAA that the referred applicant satisfies the criteria for the grant of a protection visa. Where made and accepted by the IAA, they have a central function on the review, representing the only opportunity to persuade the IAA to reach a different decision from the delegate.

Context of the submissions on these two reviews 127 In both cases, Ms Rajasekaram had been acting for the respondent from a time before the delegate's decision. This would have been apparent to the IAA from the files in each review sent to it under s 473CB. 128 Aside from telephone calls about record details such as DUA16's residential address and to confirm a representative would be appointed for CHK16 for the IAA review, and the lodging of a form confirming that Ms Rajasekaram had been appointed to act as a representative and authorised recipient for each of the respondents in relation to their reviews, the written submissions were the only communication with the IAA on behalf of either respondent. 129 The respondents relied on Ms Rajasekaram to navigate the IAA process for them. At [69] of the primary judge's reasons, his Honour found that CHK16 could not have understood the Tamil text in the IAA referral document sent to him, because of an apparent word processing mistake which had made the Tamil text nonsensical. The same finding was made about DUA16 at [75]. At [76], the primary judge found DUA16 was "reliant on Ms [Rajasekaram] to explain the delegate's reasons to him". 130 The primary judge found CHK16 had "no real understanding of what was involved" in the IAA's review: at [70]. His Honour found (at [80]) that DUA16 had an "obviously limited education and understanding of the nature of the issues", and that he had to give evidence through an interpreter. 131 The evidence before the Federal Circuit Court from Ms Rajasekaram was that she did not recall advising either of these respondents (or any of the other 40 or so clients where she used the template submissions) that they had an opportunity to put on new information before the IAA: see the reasons of the primary judge at [39]. The primary judge found that whilst CHK16 did not depose to having been told by Ms Rajasekaram that he could not give new information to the IAA, nonetheless he lost the opportunity to do so because he relied on Ms Rajasekaram to navigate the IAA process for him, and she had not advised CHK16 he could request the IAA to consider new information. His Honour also found that although DUA16's account of asking Ms Rajasekaram about this matter was rejected by the primary judge, the primary judge found (at [79]) that DUA16 "would have sought to provide more information, if [Ms Rajasekaram] had told him he had the opportunity to do so". 132 The fact was, as the primary judge recognised, that there was no request from either respondent to the IAA that it consider getting, or receiving new information for the purposes of its review. The fact also was that the IAA gave no indication it considered interviewing, and did not in fact interview, the respondents. 133 The submissions filed by Ms Rajasekaram, invited by the IAA, were the only substantive communication with the IAA by, or on behalf of, the respondents. It was their only opportunity to participate in the IAA's review. The statute contemplates, as the plurality stated in Plaintiff M174 at [22], that the primary rule by which reviews will be conducted by the IAA is: … by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. 134 The Practice Direction required submissions to be filed within 21 days of the referral to the IAA: see [21] of the Practice Direction, set out at [66] of Griffiths J's reasons. The respondents' reviews were commenced by the IAA from the position of the primary rule described in Plaintiff M174. At the commencement of the review process, the IAA's invitation to file submissions was the sole opportunity for participation given to the respondents. 135 It would be from that participation, by way of the submissions made, that the IAA might be persuaded to engage any of the "exceptions" to the primary rule. Through the submissions, the visa applicant could seek to put new information before the IAA, or the submissions might prompt the IAA to "get" new information (pursuant to the "own motion" aspect of s 473DC), or the submissions might prompt the IAA to consider interviewing the visa applicant. While the IAA might of course of its own motion consider taking such steps, given the "primary rule" in s 473DB(1), the effect of the fraud must be considered as a matter of practical reality and not theoretical possibility. It would be through a referred applicant's submissions that the IAA would, in real terms, be likely (if at all) to be persuaded to depart from the "primary rule" of how its review should be conducted.

Content of the submissions on these two reviews 136 The main aspects of CHK16's claim were set out at [6]-[9] of the primary judge's reasons: CHK16, when making his claims, said that he had bought a vehicle to operate a business transporting construction materials. He paid 500,000 rupees for the vehicle in around 2005 using savings and money borrowed from relatives. It appears that the business was quite successful, however he had only 10,000 rupees saved when the vehicle needed repairs in 2012 He borrowed around 50,000 rupees from a man called [V] to repair his vehicle, a loan which was to be repaid in a month (he "was unable to borrow elsewhere"). He said that "[V] was a well known local money lender. He was also known to take advantage of those who did not have funds and cause problems for those who were unable to pay him back." He was unable to pay [V] on time and asked [V] for another month to repay the loan. He said that [V] became angry, and told the applicant that he would complain to the authorities to make life difficult for him. He was later interrogated by members of the CID about an allegation that he had transported goods for the LTTE, which he denied. The CID threatened and abused him. He said that he had heard rumours that [V] had made a false complaint to the CID that the applicant had been involved in the LTTE. He said that he then feared the CID so much that he sold his wife's jewellery and paid 400,000 rupees to flee to Australia. 137 The main aspects of DUA16's claim were set out at [12]-[13] of the primary judge's reasons: DUA16 made claims that he is a Tamil whose parents were killed by shelling in the [war] in 1999. His older brother [C], looked after the family until he was abducted in 2008 while he was at a bicycle repair shop. The applicant believes his brother was killed by a group connected to the Sri Lankan Army. DUA16 said that soon after his brother was abducted the Army searched his house. He said that he was afraid, so he quit his job and went into hiding. He said that 'once in a while' the Army visited his brother's wife and asked about his whereabouts. Four years later he said that he left Sri Lanka. He fears harm, principally on the basis that he may be imputed to have supported the [LTTE]. 138 The only fact from the narrative of DUA16 which made its way into the submissions filed by Ms Rajasekaram was the sentence: "Also, the fact that he lost his parents in the war and one of his brothers is still missing". No fact from CHK16's narrative made its way into the submissions filed by Ms Rajasekaram. 139 The following excerpts from Ms Rajasekaram's submissions are reproduced in their original form, and include numerous typographical and grammatical errors. 140 Both sets of submissions contained generic material about the risks facing Tamil asylum seekers on return to Sri Lanka. The generic material included, for example (appearing in identical terms in both submissions): There is no political guarantee in Sri Lanka. Asylum seekers are being tortured and jailed when returned to Sri Lanka. Even if a short detention, sexual abuse, torture, kidnapping amounts to degrading and inhuman treatment. 141 There were references to country information, expressed in a generic way, about risks for returning Tamils. For example, in both submissions there appeared a long paragraph, commencing in almost identical terms: Included herewith, in article dated 5th January 2016, "Sri Lanka: It is very much business as usual- Yasmin Sooka, it states, "Tamil survivors in four countries around the world gave detailed testimony about brutal repeated torture and sexual assault while in the custody of the Sri Lankan military and Police Units during 2015. 142 There were also a number of allegations about the delegate's decision, again generic and appearing in identical terms in both submissions, such as: The decision maker should have given weight to the assertions made by the applicant in his statement of claim and also in the course of the interview with the Department of Immigration and Border Protection. The decision maker failed to consider that the applicant is also at risk as a member of the Tamil race. The decision was tainted with error of judgment. 143 The submissions also contained generic references to the applicable legislative regime, at a level of generality which was completely unnecessary to place before the IAA and which served no useful purpose in a review where there was a firm five page limit on what might be said on behalf of a referred applicant: The applicant seeks a review under Section 65 of the Migration Act 1958 (Cth), (the Act); The criteria for a protection visa is set out in s36 of the Act and Part 866 of Schedule 2 of the Migration Regulations 1994 (the Regulations); An applicant for the visa must meet one of the alternative criteria in s36(2) (a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees Convention, or the Convention), or on other 'complementary protection' grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s36(2) and that person holds a protection visa. Section 36(2) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention. 144 Almost a page of each set of submissions was then spent setting out well-established propositions about the assessment of whether a person is a refugee or meets the complementary protection criteria under the applicable legislative regime, again without any reference to the respondents or their circumstances. 145 Some submissions were styled as if they were particular to the referred applicant, but were in fact template submissions, such as (in the submissions for each respondent): The applicant vividly narrates in his recorded interview and circumstances that triggered him leaving Sri Lanka in order to protect his life. 146 The submissions contained a substantial number of assertions which had no connection with the narrative given by either respondent (and which were expressed in identical language in each submission): The applicant is imputed to be anti-government by the Sri Lankan government authorities, and their security forces… The decision maker 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. It is submitted on behalf of the applicant that he has a well-founded fear of persecution for: (i) reason of his actual/imputed political opinion of being opposed to the Sri Lankan government and its lack of Human rights practices. The UNHCR guidelines specifically states, individuals with certain profiles. He had and still has insider information on the way the police force and it's human rights or rather lack of human rights practices. The decision maker has also erred in their determination that the applicant can re-locate within Sri Lanka when the UNHCR's latest guidelines clearly state, given the State, itself is the enemy and Sri Lanka is such a small country, re-location within Sri Lanka is not possible, as clearly detailed above. 147 Representations were made in the submissions about the nature of each respondent's subjective fears, in identical language, and including personal details which did not relate to either respondent: The applicant fears threat to life and liberty, significant physical harassment and ill-treatment, significant economic hardship and denial of access to basic services as he is a traitor of the State and Sri Lankan government, denial of capacity to earn a livelihood as a police officer of Sri Lanka or in any other capacity, where such hardship or denial threatens the applicant's capacity to subsist. 148 Then there were other instances where different language was used as between the two sets of submissions, but in neither case was what was said apposite to either of the respondents' claims. 149 In CHK16's submissions: The applicant is imputed to be anti-government by the Sri Lankan government authorities, and their security forces and pro-government Tamil Militant Groups. If the applicant is forced to return to Sri Lanka his instructions are he has no doubt he will be killed, tortured, imprisoned, fined. In this regard, Australia's complementary provisions are invoked. … careful consideration needs to be given in particular to certain profiles, including media personalities and former members of the Sri Lankan Police Force. The applicant belongs to each of these groups. The applicant was reading a Human Rights degree at the University of Colombo at the time of his departure to Australia in 2013. 150 In DUA16's submissions: The applicant is perceived to belong to the social group the LTTE and is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA. His brother who was arrested along side him has successfully sought asylum in Canada. He is a seen as a traitor as he has sought asylum in Australia. 151 In both submissions, a significant aspect of the content of the submissions was the manner in which they commenced: The applicant seeking review has instructed as follows: 152 It is apparent from the content of the submissions themselves, and from the evidence given to the Federal Circuit Court by each respondent and Ms Rajasekaram herself, that this statement was a false representation. 153 Further, in CHK16's case, the heading to the substantive part of the submissions included the respondent's name, stating "Submissions on behalf of the applicant [CHK16]". In the case of DUA16, the heading simply stated "Submissions on behalf of the applicant". In both sets of submissions, however, the main heading at the start of the document included the respondents' names, and identified each respondent as the "applicant seeking review". 154 In summary, the content of the submissions reveals that: (a) the IAA was falsely informed each of the respondents had instructed Ms Rajasekaram to put their claims to the IAA in the way they were expressed in the submissions; (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; (c) the IAA was falsely informed about the factual basis for each respondent's claims; (d) the IAA was not given any accurate factual basis for each respondent's claims (again, aside from one sentence for DUA16, which itself did not say anything about the factual basis for his claims); (e) the IAA was not given any accurate submissions connecting the express factual basis for the respondents' fears of persecution with the country information about Sri Lanka, and was given only inaccurate and false submissions about that connection; (f) the IAA was give the false impression that all that could be said about the respondents' fears was material which was generalised and generic to all male Tamil asylum seekers; and (g) the result of (d), (e) and (f) was the false impression given to the IAA that each of the respondents had nothing particular to them to advance to it about why the factual basis for their claims, and the application of the country information to that factual basis, meant that contrary to the delegate's decision they did meet the criteria for the grant of a protection visa.

Role of the submissions on these two reviews 155 This aspect can be considered jointly in respect of both respondents. 156 The Minister accepted that on both reviews, the IAA took the written submissions into account. In substance, he contended that in each case the IAA was alive to the disconformities between aspects of the submissions and the respondents' respective narratives and claims, and that the IAA put those aspects of the submissions to one side. 157 In its decision regarding CHK16, the IAA stated at [5]: 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. Specifically, the submission contains reference to the applicant having a profile as a media personality, his political opposition to the Sri Lankan Army and its human rights practices (or for being anti-government), his status as a human rights student at university, a former member of the Sri Lankan police force and/or as a traitor. The applicant has made no earlier claims to fear harm on any of these bases. The evidence before me does not indicate he is a media personality, a member of the police force, that he studies human rights, or is politically opposed to the government in anyway, other than the existing claim that he was falsely accused of providing assistance to the LTTE. I am satisfied that these references are not intended to be new claims or information 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. In the alternative, even if it were to be regarded as new information, the submission does not address why the information could not have been provided before that time, or how it is credible personal information. In terms of the latter, this information does not appear to relate to the applicant at all. In the circumstances, I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii) or that there are exceptional circumstances to justify considering the information. 158 In its decision regarding DUA16, the IAA stated at [7]: 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, has been arrested and detained, and sexually abused. It states that his brother, who was arrested "alongside him", has sought asylum in Canada. None of these claims have ever been put forward by the applicant. The information about the brother is inconsistent with the applicant's own claims about his brother. I suspect that this part of the submission actually refers to another applicant, and appears in this submission in error. In any case, however, even if this information does relate to the applicant, it is not apparent why the information was not provided to the delegate before the decision was made. No explanation has been provided. The applicant was legally represented in relation to the SHEV application and at the SHEV interview, where he was asked a number of times whether he had provided all information he wished to rely on. In these circumstances, I am not satisfied that the requirements of s.473DD(b)(i) are met in respect of this new information. Nor am I satisfied that there are any exceptional circumstances which justify its consideration. 159 It is clear from the IAA's reasons that it did not simply put the personal factual aspects of the submissions to one side. Its approach, as expressed in its reasons in both reviews, was in the alternative. On the one hand it viewed the content as relating, mistakenly, to another applicant. On the other hand, it considered it could constitute new factual aspects of the visa applicant's own claims. It is true that the outcome of either alternative was that the IAA did not rely on that material in reaching its conclusions about whether each visa applicant satisfied the criteria for a protection visa. 160 Otherwise, in both reviews, the IAA stated that it took the generic country information into account if it had been before the delegate, and rejected it if it had not. It also stated that it took the generic legal arguments (if they could properly be called that) into account. 161 Further, despite its apparent uncertainty about whether the factual material in the submissions which had not been put forward on behalf of the respondents before was relevant to them, or mistakenly included in the submissions, in neither case did the IAA consider whether it should get new information in relation to the review, such as an explanation from them or their representative for the inclusion of such material. Nor was any consideration apparently given to whether either respondent should be interviewed.

DUA16's review 162 In its decision concerning DUA16 at [8], the IAA stated: Otherwise, the submission restates the applicant's claims and puts forward legal arguments addressing the delegate's decision. 163 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. 164 Further, 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. However, that is apparently how the IAA treated the submissions, by saying also at [8] that it had "considered these aspects of the submission". 165 Otherwise, for the remainder of the IAA's decision in respect of DUA16 (see [9]-[42]), the submissions filed by Ms Rajasekaram played one further explicit part in the IAA's reasoning at [24] when the IAA again appeared to discount the value of the submissions to its review by stating that: There is no credible evidence to support the contention in the representative's submission that the applicant is perceived as working against the government…

CHK16's review 166 In its reasons in CHK16's review, the IAA stated at [4]: The applicant's representative provided a submission to the IAA. 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 and I have had regard to the submission in this regard. The submission contains generic reference to the application of legal provisions relating to protection visa assessments in Australia, some of which relate more specifically to protection visa applications made prior to legislative amendments to the protection visa framework in December 2014. Nevertheless, I have considered those legal submissions in my assessment of the applicant's claims insofar as they apply to his this case. 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. None of the submissions were about CHK16's claims as an individual, that being the focus of the IAA's task.

The effect of the fraudulent conduct on the IAA's review 168 The circumstances of these appeals are quite different from SZFDE. If anything, these circumstances are more similar to those in the case discussed by French J at [109] of his Honour's reasons in SZFDE, to which I have referred at [104] above. 169 However, as the High Court in SZFDE relevantly noted at [8]: In his celebrated speech in Reddaway v Banham, Lord Macnaghten spoke of the various guises in which fraud appears in the conduct of human affairs, saying "fraud is infinite in variety". A corollary, expressed by Kerr in his Treatise on the Law of Fraud and Mistake, is that: "The fertility of man's invention in devising new schemes of fraud is so great, that the courts have always declined to define it ... reserving to themselves the liberty to deal with it under whatever form it may present itself." (Footnotes omitted.) 170 Ms Rajasekaram's conduct, over apparently approximately 40 cases before the IAA, forms part of that "infinite variety". The nature of the fraudulent conduct will have a considerable bearing on how a supervising court assesses its effect, if any, on the exercise of public power. 171 While, in SZFDE, the High Court focussed on the Refugee Review Tribunal's statutory obligations to afford natural justice through the conduct of a hearing, and the extension of an invitation to visa applicants to appear before it pursuant to s 425(1) of the Migration Act, in my respectful opinion there is no reason in principle why, in the context of different fraudulent conduct, the effect of the fraud cannot be identified as vitiating the core function of the IAA to "review" the delegate's decision. 172 The fraudulent conduct by Ms Rajasekaram was in the nature of a series of false representations made to the IAA, through the content of the filed submissions, taking account of the context in which they were made, which I have set out at [127]-[135] above. As the primary judge found, she was recklessly indifferent whether the submissions she filed reflected the respondents' claims and the country information which might support those claims. As the primary judge found, Ms Rajasekaram simply "went through the motions", knowing and intending to use template submissions from another Tamil client's case. 173 The result was the false representations and impressions which I have set out at [154] above. The IAA's task of determining whether each of the respondents met the criteria for the grant of a protection visa was subverted, and could not be described as a "true" exercise of power because the IAA was misled, not only about what the respondents had instructed Ms Rajasekaram to put to the IAA, but about the factual nature of their claims and the connection with applicable country information. The IAA was also misled into conducting its review on the basis that the respondents had nothing at all to say to it about why it should accept the factual basis for their claims, and its sufficient connection to what was in the country information. 174 The filed submissions being the only additional, substantive material placed before it on behalf of the respondents, the IAA's assessment of whether the respondents met the criteria for a protection visa entirely miscarried. 175 In these two reviews, it may be difficult to conclude the IAA acted entirely on a "presumption of regularity", as the High Court found the Tribunal had done in SZFDE at [51]. Such an inference is harder to draw in the present circumstances given the IAA's reasons in each review made it clear the IAA was aware the filed submissions included a factual narrative which was foreign to the way each respondent's claims had been put to that point. Why the IAA chose to do nothing about its suspicions, or concerns, is not relevant to the issues on the appeal, although it is possibly relevant to the amended notices of contention. 176 Nevertheless, the fact that the IAA had some inkling that Ms Rajasekaram may have filed submissions that may not, in reality, have been about the referred applicant, and yet went ahead and determined the review including by reference to whether the factual narratives were new claims and new information, demonstrates that the reviews of each of the respondents were indeed subverted by the fraudulent conduct. The IAA proceeded, in the alternative, on the basis that the respondents were each seeking to advance a raft of new and quite different claims, for the first time. That could not fail to undermine the IAA's opinion whether it should be satisfied they met the protection visa criteria. 177 It is also important to recall what was noted by the High Court in SZFDE at [22]. Namely, that for persons in the position of the appellants in that case (and the respondents in this case): … the only remedy that would be of real utility to the appellants is an order that provides them with the opportunity to press their claims to a protection visa in a fair hearing conducted according to law. 178 Those observations were made by the High Court in SZFDE in the context of the disabling effect of the fraudulent conduct on the Tribunal's procedural fairness obligations to review applicants. Here, as I have explained, the disabling effect was on the IAA's review task itself, all the more so because (as the primary judge noted) of the very limited opportunities available to referred applicants to persuade the IAA why they satisfy the criteria for a protection visa.

Conclusion 179 The Minister's appeal should be dismissed in each proceeding. 180 My reasoning focuses on the IAA's core function of conducting a review of the delegate's decision to determine whether a referred applicant satisfies the criteria for a protection visa. The primary judge's reasoning focussed on the denial of an opportunity to the respondents to persuade the IAA to receive new information on each of their reviews: see [84] of the primary judge's reasons, although the primary judge's finding at [86] is somewhat broader. 181 To the extent that my reasoning differs from that adopted by the primary judge, and it is necessary in order to give effect to my reasoning to do so, I would also uphold issue two of the amended notices of contention and affirm paragraphs one and two of the orders of the Federal Circuit Court in each proceeding, on the basis that each of the IAA's reviews was vitiated by Ms Rajasekaram's fraudulent conduct. While the particulars to issue two in each amended notice do not precisely reflect how I have expressed the effect of her fraudulent conduct, they are not irrelevant to the basis I have identified, and the first proposition in issue two of each of the amended notices of contention is the essential proposition which I consider to be correct. 182 I note that at [87] of the Federal Circuit Court's reasons, the primary judge expressed the view that in light of Ms Rajasekaram's conduct it was: … appropriate that the court consider referring the papers to the Victoria Legal Services Commissioner and the Office of the Migration Agents Registration Authority (OMARA). 183 The primary judge indicated the parties and Ms Rajasekaram should be heard on this matter before any such order is made, and also on the question of costs. I infer neither of these matters have yet been considered by the Federal Circuit Court, because of these appeals. 184 I endorse, with respect, the view of the primary judge that consideration should be given to referring Ms Rajasekaram's conduct to OMARA and to the Victorian Legal Services Commissioner. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

WHEELAHAN J: 185 I have had the considerable benefit of reading in draft the reasons for judgment of Griffiths J and of Mortimer J. Like Mortimer J, I respectfully agree with the reasons and conclusions of Griffiths J in relation to grounds of appeal one and three, and in respect of issue one arising from the amended notice of contention. In relation to ground of appeal two and the other issues arising from the amended notice of contention, subject to the following observations, I respectfully agree with the reasons for judgment of Mortimer J. 186 In SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189, the Court specifically refrained from laying down any principles of general application concerning judicial review of an administrative decision where third party fraud is alleged. At [28] and [29] the Court stated - 28. It is unnecessary for the resolution of the present appeal to determine at large and in generally applicable terms the scope for judicial review for "third party fraud" of an earlier administrative decision (whether a primary decision or, as in the case of the Tribunal, an administrative decision itself made as a system of external administrative review), where the applicant for judicial review did not collude in the fraud practised on the administrative decision-maker or review body and did not then learn of the fraud but complains of it in subsequent proceedings. 29. Rather, the present appeal should be resolved after close attention to the nature, scope and purpose of the particular system of review by the Tribunal which the Act establishes and the place in that system of registered migration agents. 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" in the particular context. It then is necessary to identify the available curial remedy to effect the "unravelling". To these matters we now turn. 187 In SZFDE, the Tribunal's obligation under s 425 of the Migration Act to invite the appellants to appear before it to give evidence and to present arguments, and the Tribunal's power under s 426A of the Act to make a decision on review in the absence of appearance were regarded as of central importance to the legislative scheme there under consideration. It was in that legislative context that the Court held that the third party fraud in that case had "the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants": SZFDE at [49]. 188 What is of significance in the present cases is the dishonesty by the solicitor in her dealings with the respondents, coupled with her reckless indifference as to the terms of the submissions that she made to the Immigration Assessment Authority on behalf of the respondents: see Griffiths J at [49]-[50]. The dishonesty by the solicitor involved holding out to her clients that she was acting for them as individuals, but where she had a practice of preparing pro forma submissions. As the primary judge held at [58], the solicitor took a fee to provide a professional service in circumstances where she believed that the client would not pay for the service if the client was aware of the true nature of the service she intended to perform. And at [62], the primary judge held that there was never any intent of the solicitor's part properly to prepare submissions for the Authority. This had the consequence, as Griffiths J has observed, that the submissions falsely stated that they represented the solicitor's instructions. 189 The material feature of the respondents' cases is that, as Mortimer J has demonstrated, in the discharge of its statutory review function the Authority took account of submissions that contained false information and which were prepared in furtherance of the ostensible discharge of a retainer that was procured dishonestly. It is important to emphasise that these features of the respondents' cases make them stand apart from other cases or mishaps involving no more than poorly formed or generic or incomplete submissions, mistaken information, negligence, serious negligence, and even serious negligence amounting to unprofessional conduct: see SZFDE at [53]. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.