Minister for Immigration and Border Protection v Maharjan & Ors

[2018] HCATrans 95

[2018] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S18 of 2018

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

SHRAMIKA MAHARJAN

First Respondent

RAJU MAHARJAN

Second Respondent

SARAD MAHARJAN

Third Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Fourth Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 MAY 2018, AT 1.58 PM

Copyright in the High Court of Australia

____________________

MR G.T. JOHNSON, SC:   If your Honours please, I appear with MR N.D.J. SWAN, for the applicant.  (instructed by DLA Piper Australia)

MR D.H. GODWIN:   If it please your Honours, I appear with MR T.J. DAVIE, for the first to third respondents.  (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

GAGELER J:   Yes, Mr Johnson.

MR JOHNSON:   Yes.  Thank you, your Honour.  As your Honours will have noticed, there are two proposed grounds of appeal and two special leave questions and the first of those questions is really focused upon the issue as to whether or not one could have migration fraud ‑ the sort of thing which was acknowledged by this Court in SZFDE ‑ in circumstances where a false document, a deliberately false document, was provided, and let us assume without the applicant’s knowledge, without the visa applicant’s knowledge, of the falsity even though she is responsible for its provision, and circumstances arise where the falsity is detected by the Department, then communicated to the applicant who is informed of the falsity but also, in this case, of public interest criterion 4020 which would have had the effect that if it was a knowingly false document submitted it would disentitle her from the visa, and the applicant, the visa applicant, with that knowledge then nonetheless wishes to go ahead with the application.

GAGELER J:   Is there a question of principle here?  What is the question of principle?  I mean, the way you frame it is so extremely fact specific that ‑ ‑ ‑

MR JOHNSON:   That is right.

EDELMAN J:   We do not have all the facts.

MR JOHNSON:   Well, the statement of principle is this – whether or not – I am sorry, bear in mind that the facts which we have set out in paragraphs 1 to 9 of the summary of argument are not in dispute, they are accepted in paragraph 3 of our friend’s summary.  And the point of principle in relation to number 1 and what I have just put to your Honours is that in those circumstances there could not have been fraud ‑ ‑ ‑

GAGELER J:   Could not have been ‑ ‑ ‑

MR JOHNSON:   There could not have been any fraud on the applicant or on the decision‑maker which affected any decision‑making process.

GAGELER J:   Well, she says – it depends what you mean by “on”.  You seem to give the preposition some loaded content.  But she says she did not know that it was a false document.

MR JOHNSON:   She does say that, but then she finds out that it is a false document.

GAGELER J:   Correct.

MR JOHNSON:   After she is informed of the falsity she presses the application anyway.

GAGELER J:   Is that your point?

MR JOHNSON:   That is the point.  The Full Court just did not deal at all with the effect of that response in which she, having been informed of the falsity, and having ‑ ‑ ‑

GAGELER J:   Mr Johnson, what if she were asked, as she might well be asked on the remitter, why she pressed on, and what if she said she did not realise she had any option?

MR JOHNSON:   The invitation which went to her – and your Honours will see we have used that document to refer to a letter, in effect, which went telling her about the falsity, telling her about PIC 4020 – also told her that she could withdraw.

EDELMAN J:   Withdraw and reapply?

MR JOHNSON:   She could withdraw the application and make another one if she so wished, yes.

EDELMAN J:   Where do we find that letter?

MR JOHNSON:   The letter has not been put in the application book because the matters in paragraphs 1 through to 9 of the facts have been admitted by my friend.  If your Honours wish to see the letter, we can give your Honours the letter.

GAGELER J:   No, I do not think we want to get into the detail of the evidence.

MR JOHNSON:   No.

EDELMAN J:   This is the very sort of thing that you would need to establish on a remitter to really engage with these questions of law, are they not?

MR JOHNSON:   The problem that we have here, your Honour, is that – let us assume for the moment that we are correct in saying that there could not be any fraud, either upon the applicant or upon the delegate, if both knew about the falsity and the – in other words, the delegate discovered it and then told the applicant who is then aware – and then the applicant chooses to proceed, notwithstanding the information that she has got ‑ ‑ ‑

EDELMAN J:   Why does that necessarily mean that the fraud had no effect on the applicant’s decision?  I mean, you may be right in a “but for” sense that the applicant chose to proceed knowing of the fraud, but the fraud could have still had a material contribution to her decision, could it not?

MR JOHNSON:   There could not be any fraud after that mutual knowledge existed but she continues with the application.  She continues with the application having then put on notice about public interest criterion 4020.  In those circumstances ‑ ‑ ‑

GAGELER J:   Mr Johnson, what is the relevance of being put on notice about the public interest criterion?  How does that feature in this aspect of your argument?

MR JOHNSON:   Because the invitation lets her know if a false document, a bogus document, is provided, then that has the consequence under PIC 4020 that she cannot satisfy a criterion for the visa.

GAGELER J:   So the premise of your argument, as I understand it, is that there has been a fraud on her up until the point that she is informed of the bogus document, is that so?

MR JOHNSON:   I am not assuming that there has been a fraud on her up until that point, but what we are saying to your Honours is that whereas the Full Court sent it back to the Circuit Court in effect for the Circuit Court to find out whether or not there had been a fraud upon her and whether or not that fraud had stultified the decision‑making processes of the Department ‑ what we say is that on the facts of this case there could not be a fraud for the reasons that I have described.

And why is that a matter of general principle?  Because it would expand significantly the notion of fraud if there could be a continuing fraud, either upon the applicant or upon the decision‑maker, after the fraud had been – let us call it a fraud for the moment; there is a dispute about that, we do not accept…..necessarily was the fraud, let us assume for the moment it was – after it is discovered by the Department and then the applicant, the visa applicant is informed of it and she continues anyway, she wishes to go ahead with her application, albeit relying on other material.

EDELMAN J:   Mr Johnson, I understand your submission that the fraud, if one assumes there is a fraud here, cannot relevantly operate but does not one need to start with the question of how would the fraud have operated if it could vitiate this process?  That is the legal principle that one needs to decide whether it applies or not and it is not clear to me that it has really yet been explored how a process including PIC 4020 would be vitiated by fraud.  What would the fraud do?  Would it vitiate the criterion?  Would it vitiate the whole of the process?

MR JOHNSON:   Well, your Honour, there are other issues flowing from that and some of those are picked up by the second leave question.

EDELMAN J:   There are also questions of construction of what is meant by bogus as well in that regard.

MR JOHNSON:   Could I just be clear about this?  The question of what effect would be a bogus document – I will come to bogus document in a moment – have had if it had not have been detected is one which obviously did not arise here because it was detected et cetera and the visa applicant decided to proceed anyway.  But if one had a case where a third party furnished a document which was deliberately false, deliberately untrue, and if that was done in circumstances without any complicity or indifference by the applicant, and if the applicant could show that there was a fraud upon her, that is, (a) that the person’s conduct was fraudulent as regards her, which is what happened in SZFDE, and if one could then show that that behaviour affected the decision‑making process of the Department such that it was taken into account and altered what might otherwise have been the decision‑making of the Department, then one could apply to have the decision set aside, applying SZFDE.

What happened here was somewhat different.  What happened here was that the applicant, the visa applicant, when she got to the Federal Court was asking the Federal Court to require the Circuit Court to look at the matter again and to decide whether fraud had invalidated the visa application and the visa application process.  That was the language of the ground.  It is a very short ground and it is at page 40 of the book.  There was no particularisation within it.  That was the ground:

The Federal Circuit Court erred by not deciding the jurisdictional fact of whether fraud had invalidated the visa application or the visa application process.

The court sent the matter back, requiring the Circuit Court to do that.  Now, the evidence before the Full Court included both the invitation that we have been talking about and the response that we have been talking about.

GAGELER J:   And you say the majority does not engage with that material?

MR JOHNSON:   That is right, and if one puts oneself in the position of a Circuit Court judge he or she would have to assume that those documents which were before the Full Court would not have made any difference.

GAGELER J:   Why?  I mean, the terms of remitter require him or her to make up his or her own mind, surely.

MR JOHNSON:   Well, involved in the Full Federal Court sending it back would be the idea that there could have been such fraud.  What we are saying, your Honour, is that there could not have been fraud of the kind that the Federal Court requires the Circuit Court to investigate in this case in the circumstances that we have described, the circumstances being that the falsity of the bank statement was detected, the applicant was informed of that through an invitation to comment which also told her about PIC 4020 and, indeed, mentioned that she could withdraw, and then she pursued her application for a student visa.  In those circumstances, we say there could not have been a fraud of the kind that the Circuit Court has asked the – I am sorry, that the Federal Court has asked the Circuit Court to inquire into.

Your Honour, in addition to those problems there is another aspect of the Circuit Court’s judgment which we say also has an effect, an effect of general importance, which may affect the case led, bearing in mind it is not uncommon in this area for false documents to be submitted in the course of a visa application.

The second aspect of the matter which was picked up in the second ground, in the second special leave question, is that the Federal Court has reasoned that there was a visa application process which had the effect that the original visa application could become fraudulent and of no effect if this document was later submitted.

EDELMAN J:   You are assuming there that the document is not part of the application.

MR JOHNSON:   That is right.  Exactly.  There was an initial application and then this document was supplied later, as we have described in paragraphs 1 to 9.

EDELMAN J:   As a document to support the application.

MR JOHNSON:   That is right.  Now, there are a number of problems with that and those problems can shortly be summarised in this way.  Firstly, it is not in dispute that the visa application was valid when lodged, therefore it attracted an obligation to consider; that obligation arises under section 47.  Secondly, there was no event of the kind envisaged by section 47(2) of the Act which brought that obligation to an end.  In our submission, the delegate remained obliged to consider the application.

That application was one which was valid in fact at the time it was lodged – not a situation where an invalid application was lodged and then it becomes valid later on by the submission of further material – there was already a valid application lodged and the obligation to consider it had arisen.

GAGELER J:   Let me just pose to you the hypothetical.  What if the bogus document had been included with the original application, would that change the analysis?

MR JOHNSON:   If the bogus document had been included with the original application such as to make the original application fraudulent, it could, but it is not necessary to so find to produce a situation where if the fraud continues to decision and affects the decision relief might be available applying SZFDE against the decision, not against the application.

There is no need to hold the visa application to be invalid, to provide a remedy in the situation that your Honour has described, but even if it did make the visa application invalid, that would not aid an applicant in the circumstances of this case – not uncommon where the deliberately false document comes later.

The other thing, your Honour, in relation to the statute is that the Full Court relied on sections 54 and 55, finding in effect that the effect of those provisions was that if another document was submitted later on after the visa application then it became a part of the application so that in that way they would say there was not any offence to this idea of the originally ‑ the valid application needing to be considered.

The particular problem with that, the particular problem regarding the additional document as part of the application, is evident from the text

of sections 54 and 55 which I can shortly explain.  If your Honours just go to pages 107 to 108 of the book.

GAGELER J:   Yes.

EDELMAN J:   I think the red light has been on for a couple of minutes so you might need to be brief.

MR JOHNSON:   I am sorry, your Honours.  I apologise.  Would your Honours like me to stop?

GAGELER J:   No, you tell us what is at 107 and 108.

MR JOHNSON:   Very well.  Section 54(2) says that:

For the purposes of subsection (1), information is in an application if the information is:

(a)      set out in the application; or

(b)      in a document attached to the application when it is made; or

(c)      given under section 55.

Assuming here that the document was given under section 55, the court below reasoned, well, that is a part of the application.  But when one goes to section 55(1) and when one considers the opening words of 54(2) that is not so because the document is treated as part of the application only for the purposes of subsection 54(1), that is, for the obligation to consider the evidence.  So it is only the obligation to consider which is attracted by 54 and 55, not the validity of the application.

GAGELER J:   So we have that point, thank you.

MR JOHNSON:   Your Honours, that idea that the application is – the idea that something which is a valid application ‑ ‑ ‑

GAGELER J:   Mr Johnson, we gave you the indulgence of taking us to those provisions and we thank you for it, but it is time to sit down.  Mr Godwin, we do not need to hear from you.

In circumstances in which the matter has been remitted to the Federal Circuit Court for the making of findings of fact we are not satisfied that the case presents, at this stage, as a suitable vehicle for considering any question of principle as to the effect of third party fraud on a visa application or on the visa application process.  Special leave is refused with costs.

AT 2.22 PM THE MATTER WAS CONCLUDED