Submission templates

Section 473FB of the Migration Act 1958 (Cth) provides that the Immigration Assessing Authority's (IAA) President may issue Practice Directions. The IAA has a Practice Direction inviting submissions from protection visa applicants on matters that include whether there were any errors in a refusal to grant a visa by a delegate of the Minister

The practitioner prepared written submissions for a protection visa client. Those submissions then became a template for future clients, including Clients A and B. For Client A, the practitioner did not amend the template at all. For Client B, the practitioner did make amendments to include Client B's personal information, but kept some arguments which did not apply to Client B.

Regarding Client A's merits review application, the IAA: concluded that the submissions for Client A concerned the wrong person; took into account the generic aspects of the submissions; disregarded the specific aspects of the submissions, as they did not concern Client A; disregarded specific reports that had been predated the delegate's decision, did not contain credible personal information and and had not been before the delegate; and affirmed the delegate's decision to refuse to grant Client A a protection visa.

Regarding Client B's merits review application, the IAA: concluded that parts of the submissions erroneously concerned another client and disregarded them; in any event, observed that the requirements in s 473DD of the Migration Act 1958 (Cth) for consideration of new information had not been met; considered the part of the submission which correctly concerned Client B; and affirmed the delegate's decision to refuse to grant Client B a protection visa.

Some of the questions to the High Court (HCA) were as follows:

Question 1: Can it be said that the appeal to the High Court required "close attention to the nature, scope and purpose of the particular system of review", as opposed to reliance upon maxims such as "fraud unravels everything"?

Question 2: Can it be said that, in order for the actions of a rogue to stultify the operation of the legislative scheme and therefore to constitute a ground of judicial review, that scheme must be affected by actual fraud or dishonesty, as opposed to mere negligence?

Question 3: As a ground of judicial review, must fraud affect a particular duty, function, or power of the IAA?

If the answer to Question 3 is "yes":

Question 4: Did the practitioner stultify the "core review function" in s 473CC, which required the IAA to review the delegate's decision and either affirm the decision or remit it for reconsideration with such directions or recommendations of the IAA as are permitted by regulation?

Question 5: Was the IAA's power to make Practice Directions affected by the practitioner's fraud?

Question 6: Can submissions be "new information" for the purposes of s 473DC?

Question 7: Is there a general obligation on the IAA to advise applicants of their opportunities to present new information?

Question 8: Can it be said that there is no general obligation upon the IAA to get new information even if "submissions are hopeless, or if they contain errors, even major errors, about facts or law"?

Question 9: Can it be said that the IAA's failure to exercise the power in s 473DC to get new information concerning Client A was legally unreasonable in that no reasonable decision-maker would have decided the review without taking the simple step of asking for the correct submissions to be provided?

Question 10: Can it be said that the IAA's failure to exercise the power in s 473DC to get new information concerning Client B was legally unreasonable?

The HCA answered those questions as follows: