Federal Court (Full Court): In SZFDE, HCA had held that a representative's conduct only invalidates a review under Pt 7 of the Migration Act if conduct is fraudulent and subverts the review. Here: 2 visa refusals were automatically referred to the IAA for review under Pt 7AA; the same representative purported to make submissions to the IAA on behalf of both visa applicants (the respondents); however, without the respondents' knowledge, those were template submissions copied from other cases, which said little about the respondents' cases, made arguments that related to other applicants and made generic arguments. The FCAFC was divided on whether SZFDE applied to Pt 7AA reviews.
The questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: "was the representative’s conduct of such a character that it constituted 'fraud' within the public law meaning of that concept"?
Question 2: If the answer to Question 1 is "yes", did the representative's conduct "have the effect of subverting or stultifying an imperative statutory function of the IAA under Pt 7AA so as to constitute a fraud 'on' the IAA"?
Question 3:
Background: GRIFFITHS J said as follows at [33]
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.
Question: were the reasons provided by the FCCA's judge inadequate?
Question 4: Should it be 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'"?
Although the FCAFC, we explain below how each judge answered those questions: