Fraud or unreasonableness?

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?

1. 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
2. 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’.

Creative commons acknowledgment for the photograph.