by Paul Cutler | Mar 2, 2021 | Uncategorized
The cases of Minister for Home Affairs v DUA16 and Minister for Home Affairs v CHK16 [2020] HCA 46 highlight an interesting application of legal unreasonableness to what appears to be case of fraud.
It was common ground that the applicants in these cases (and probably about 40 others) were the victims of fraud by their migration agent (who was also a lawyer). She didn’t tell her clients that she intended to use a pro-forma submission to the Immigration Assessment Authority (“the Authority”)(which reviews claims for asylum for maritime arrivals).
She apparently didn’t do a great job with the pro-forma because:
In the case of CHK16, the agent, acting fraudulently, provided submissions where the entirety of the personal circumstances concerned the wrong person. [the details for DUA16 were partly correct]. The Authority was unaware of the agent’s fraud. The Authority noticed that the submissions concerned the wrong person yet did not seek to obtain the correct submissions and any new information about the correct applicant. Instead, it had regard to the submissions concerning generic information and legal issues but disregarded the information concerning the personal circumstances of the wrong person.
So what are the legal consequences of this?
- firstly, as a ground of judicial review, fraud must affect a particular duty, function, or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense. Although the Authority requested (pursuant to a Practice Direction) submissions and received false ones, the Court said that this did not affect the Authority’s power to make the request. No duty, function or power was affected in any adverse way; and
- However, all was not lost for the Appellants because the Authority was aware that the information it received was in relation to a different person. In those circumstances it was held to be legally unreasonable not to request the correct information.
This is interesting because the general proposition is that “there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law.” However, all powers have to be exercised “legally reasonably” and “the failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.” A very interesting balance between the two, but the circumstances of these applicants was said to be “extreme’.
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by Paul Cutler | Feb 12, 2021 | Uncategorized
Visas can be cancelled on the basis that the holder is not of good character under section 501 of the Migration Act. This usually means that the person has a “substantial criminal record”. The decision to cancel is discretionary and subject to review in the AAT (usually). So what happens when:
- a permanent visa is cancelled after the visa holder is convicted on several sexual assault charges and sentenced to imprisonment;
- he successfully seeks merit review in the AAT (so that the cancellation is set aside);
- then a few years later, he had a drink driving offence which again brought him to the Minister’s attention and resulted in the second cancellation of his visa. The drink driving offence by itself was not enough to trigger “bad character” but was taken into consideration with his previous offending.
He again seeks review of the decision and ultimately, the High Court (in Minister for Immigration and Border Protection v Makasa [2021] HCA 1) frames the question as (at [44]):
The determinative question therefore becomes whether, and if so when, the power conferred by s 501(2) of the Act, having once been exercised by the Minister or a delegate in the first instance or re-exercised by the AAT on review not to cancel a visa, can be re‑exercised by the Minister or a delegate to cancel the visa.
and the answer is (at [56]):
The result, in short, is that a decision of a delegate or the AAT not to cancel a visa made in the exercise of the power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A.
This basically means the power can only be used once. I will leave you to read the decision for all the analysis that led to that conclusion (which is more complicated than it first appears).
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by Paul Cutler | Dec 8, 2020 | Uncategorized
The issue of people being held on Manus or Nauru having their applications for medical treatment in Australia denied often receives media coverage. Likewise, there have been a number of cases where these people have made applications to prevent their return to Manus of Nauru. The short version of a long story is that there are several provisions in the Migration Act which are directed towards preventing litigation by these people (technically “transitory persons”) who are in the offshore processing regime .
Section 494AB is under a heading which says “Bar on certain legal proceedings relating to transitory persons” and the section starts with: “The following proceedings against the Commonwealth may not be instituted or continued in any court….[a list follows]”. My initial reaction was that this meant there was no jurisdiction (at least in the Federal Court) to entertain these matters. However, that’s not the view taken by the High Court in a number of cases heard together in Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43.
In essence, High Court has found by analogy with the law relating to limitation periods that a statutory bar does not extinguish a right or underlying cause of action or affect a court’s jurisdiction. In other words if a bar is pleaded in defence then it would go to the remedy available not to the jurisdiction.
So, it would be on the Commonwealth to raise a 494AB defence to proceedings started by a transitory person. One of the issues with that is that the Commonwealth is a model litigant and the High Court has pointed out that the defence should only be raised when it was consistent with those obligations. It seems to me (possibly incorrectly) that this means that 494AB has very little “work to do”. This is an interesting but very technical decision.
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by Paul Cutler | Nov 23, 2020 | Uncategorized
It is impossible in the space I allow for a blog post to do justice to the case of AJL20 v Commonwealth [2020] FCA 1305. However, everybody who has ever studied administrative law will know that (at least in Australia) there is no such thing as an unlimited power. ALJ20 is a case about the limits on the power in the Migration Act to detain unlawful non-citizens. ALJ20 is a Syrian national who had his permanent visa cancelled on character grounds, was then placed in immigration detention but who couldn’t be “refouled” (ie sent back) to Syria because of the protection obligations owed to him.
Section 189 Migration Act says that unlawful non-citizens have to be detained. Such a person can only be detained until they are removed from Australia (section 196) and that must occur “as soon as practicable” (section 198(6)). The issue before the Court was that in a situation where removal was practically impossible (my words) did the detention of AJL20 continue to be lawful? The answer, at least by Bromberg J at first instance is that AJL20’s detention wasn’t lawful and the court issued the writ of habeus corpus (to have him released). The judgment carefully examines the older “detention cases” (such as Al Kateb), the requirements for habeus corpus and the limits on administrative power.
This decision will have to end up in the appellate courts and I am sure that AJL20 is probably not the only person who is unlawfully being detained.
I am unsure of AJL20’s visa status. It appears he is in the community, without a valid visa and that it would be unlawful for the Commonwealth to further detain him. This is a very interesting case!
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by Paul Cutler | Oct 23, 2020 | Uncategorized
The activities of the (former) firm S&S Migration are so infamous that the Full Federal Court judgment in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 commences with: “…this is yet another case arising from the carnage left by the fraudulent conduct of S & S Migration.” It was not in dispute that the Applicant’s visa application had been lodged, by SSM and was based on deliberately false information.
In those circumstances you might have thought it would be relatively straightforward for the applicant to say “not my problem, the agent was a fraudster”. Unfortunately that’s not the only requirement. If the Appellant’s visa application was invalid because of third party fraud, then the fraud had to be both:
- one which was perpetrated on the Appellants; and
- which also stultified one or more aspects of the visa application and determination process.
The onus was on the applicant to prove that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). This means that the applicant must satisfy the court to the requisite standard that she or he was ‘neither complicit in the fraud nor “indifferent” to it”. Indifferent is a very broad term and means recklessly indifferent or “wilfully blind”.
Unfortunately for this applicant, the Federal Circuit Court did had found a number of discrepancies in documents and had found that the appellant was indifferent “about truthfulness and accuracy in documents, including affidavits filed in this Court”. The Full Court relied on those findings and found that the applicant hadn’t discharged his onus of proof. The appeal was dismissed.
Fraud is one of those things which is easy to allege but very difficult to prove. As this case also demonstrates, don’t even think about alleging it if you don’t come with “clean hands” (yes, I know, judicial review is not equity).
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