Fraud in a public law context: less bloody than its common law cognate
Minister for Home Affairs v DUA16  FCAFC 221
- The principles of public law concerning impropriety and exercise of statutory powers do not require the sort of turpitude as that which can be described as the “red blooded” species of fraud proscribed by the common law
- Fraud has the effect of “distorting”, “vitiating”, “subverting”, “disabling” or “stultifying” the true exercise of power by public authorities.
- Often the only remedy that would be of real utility to victims of fraud is an order that provides them with the opportunity to press their claims in a fair hearing conducted according to law.
In Minister for Home Affairs v DUA16  FCAFC 221, Mortimer and Wheelahan JJ upheld the decision of the Federal Circuit Court of Australia (FCCA) to set aside decisions of the Immigration Assessment Authority (IAA) in two cases that involved fraud by a migration agent. The agent had lodged separate written submissions with the IAA on behalf of the two referred applicants (the respondents in the Federal Court appeals), which substantially reflected the factual claims made in submissions prepared by the representative for other unrelated persons and whose circumstances were quite different from those of the respondents. It emerged that the representative had used substantially the same submissions in around 40 different cases in the IAA.
The migration agent – Ms Rajasekaram – represented a number of applicants for asylum but the present case concerned two particular applicants, both of whom had arrived separately as unauthorised maritime arrivals from Sri Lanka. Ms Rajasekaram was engaged in both cases to put submissions to the IAA, which was reviewing the respective decisions of a Delegate of the Minister to refuse their applications for a protection visa. The submission in both cases was a little more than four pages in length and commenced with the statement that: “The applicant seeking review has instructed as follows…”. Both submissions said virtually nothing regarding the personal circumstances of the applicants. A number of statements in the submissions, although purportedly relating to each applicant’s personal circumstances, actually related to the circumstances of another applicant.
The IAA affirmed the decision of the delegate in both cases to refuse to grant a protection visa. Both applicants applied for a review of the IAA’s decision to FCCA (having obtained new representation): DUA16 v Minister for Immigration and CHK16 v Minister for Immigration  FCCA 1128.After hearing argument, 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 applicant. 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: ;
- 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: ; and
- “At best the conduct in creating the documents was reckless, and at worst dishonest”: .
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”: .
At , 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.
The Minister appealed the decision of the FCCA to the Full Court, which dismissed the appeal by majority (Griffiths J dissenting). In assessing the impact of the fraud on the function of the tribunal, Mortimer J noted that 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: .
This position was cautiously adopted by Wheelahan J, though his Honour noted that the material feature of the case was that the IAA had, in the discharge of its statutory review function, taken account of submissions that contained false information and which were prepared in furtherance of the ostensible discharge of a retainer that was procured dishonestly.
The Minister has sought special leave to appeal the Full Court’s decision to the High Court and the matter is currently unresolved at the time of posting this article. If the High Court upholds the decision of the Full Court, it is likely that this decision will have wide ranging implications for the way in which tribunals carry out their functions. The impact of the case may be that tribunals will go to extra lengths to ensure that the submissions or facts they rely upon are obtained truthfully and properly. This is particularly salient in cases such as migration merits review where the consequences of relying on false information can significantly impact the prospects of a successful asylum claim and, accordingly, risks refoulment in circumstances that may be harmful to life.