Singh v Minister for Immigration
[2015] FCCA 509
•11 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 509 |
| Catchwords: MIGRATION – Whether migration agent engaged in fraud – whether fraud gave rise to jurisdictional error – whether no valid visa application – where applicant not eligible nor ever would be eligible for visa sought in application – effect of s.48 – whether relief sought futile – whether utility pre-requisite to establishment of jurisdictional error – whether Court has jurisdiction to hear and determine application for judicial review – no jurisdiction. |
| Legislation: Migration Act 1958 (Cth), ss.476, 46, 349(1), 48, 46, 47, 65 and 338, 476(1), 5, 476(2)(a), 474, 474(5), 474(6), 195A, 46A Migration Regulations 1994 (Cth), rr.2.17(4), 2.07(4), cl 485.221(1), cl485.224 of Sch 2 |
| Minister for Immigration and Border Protection v Kim [2014] FCAFC 47 Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Lansen v Minister (2008) 174 FCR 14 Plaintiff M 61/2010E v the Commonwealth (2010) Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 SZSRY v Minister for Immigration and Citizenship [2013] FCCA 1284 MZYLE v Minister for Immigration and Citizenship [2011] FMCA 589 Minister v Bhardwaj (2002) 209 CLR 597 |
| Applicant: | MOHINDER PAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1966 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 19 December 2014 |
| Date of Last Submission: | 13 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Ravi James Lawyers |
| Counsel for the Respondent: | Mr O'Donnell |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The Application for judicial review made on 15 November 2013 and the Amended Application for judicial review made on 27 March 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1966 of 2013
| MOHINDER PAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Mr Mohinder Pal Singh (“the applicant”) has applied for judicial review pursuant to s.476 of the. Migration Act 1958 (Cth) (“the Act”) of a decision of the Migration Review Tribunal (“the Tribunal”) dated 14 October 2013 affirming a decision of a delegate of the first respondent made on 16 April 2012 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa (“the visa”).
The ground for judicial review pressed by the applicant at the hearing of this application is that jurisdictional error arose because there was no valid visa application within the meaning of s.46 of the Act:
a)because of fraud engaged in by the applicant’s original migration agent; and
b)because the application did not comply with r 2.07(4) of the Migration Regulations 1994 (Cth) (“the Regulations”).
The relief sought by the applicant is:[1]
a)Prohibition against the first respondent (the Minister), restraining him from acting on the decision of the second respondent (dated 14 October 2013 ); and
b)Certiorari to quash the purported decision of the second respondent.
[1] Amended Application filed 27 March 2014.
The applicant also sought mandamus directed to the second respondent to determine the matter according to law. In light of the recent decision in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47 (Kim), where it was held, at [27], that the determination of the validity of a visa application is a question which the Court should decide, the applicant no longer sought this order. See also Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (“Prodduturi “) at [48].
The applicant informed the Court, at the first hearing of this application, that he was never eligible and could never be eligible for the visa he applied for in his visa application.
Largely in light of this concession, the Minister submitted that, in the circumstances of this case, the Court lacks jurisdiction to hear and determine this application for judicial review.
As this submission was not earlier raised by the Minister in written submissions, I gave directions for the filing of further written submissions and the listing of a further hearing. Written submissions were filed by the applicant and the Minister on 3 October 2014 and 10 October 2014 respectively.
Following the second hearing, the decision in Prodduturi was handed down. As the decision appeared relevant to this case, the applicant and Minister were provided with the opportunity to file written submissions. Further written submissions were filed by the Applicant and Minister on 9 February 2015 and 13 February 2015 respectively.
In light of the Minister’s submission, the first matter I must decide is the Court’s jurisdiction. Before deciding whether I have jurisdiction to hear and determine the applicant’s application for judicial review I will set out the background to this application.
Background
The applicant is a citizen of India who applied for the visa on 23 March 2011 (CB1 to 15). The applicant had come to Australia in June 2009 as a dependent of his wife who held a student visa.
On the 17 February 2012, an officer of the Graduate Processing Centre of the Department corresponded with the applicant by email, inviting him to comment on information (CB 11 to 13).
In the correspondence it was noted that a requirement for the grant of the visa was that the applicant satisfied Public Interest Criterion 4020 (PIC 4020) which requires that there be no evidence before the Minister that the applicant had given, or caused to be given, to the Minister, an officer, or the Tribunal, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.
The officer stated the following (CB 11):
“It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference number in the office of S & S Migration.”
The officer noted that the applicant had answered “yes” to a question, “have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?” It was further noted that the applicant had provided a reference, indicating the completion of a successful skills assessment. The officer stated that upon taking steps to verify this reference, the Department was informed by the Trades Recognition Authority (“TRA”) that they had no record of the applicant. The officer stated, “it is, therefore, alleged that you provided false and misleading information to the Department in relation to your application for the 485 visa” (CB 12).
I note here that there is no dispute that the application for the visa was made by a Migration agent, S & S Migration, on the applicant’s behalf. The applicant did not provide a response to the officer’s correspondence.
On 16 April 2012, a delegate of the Minister refused to grant the applicant the visa because the applicant failed to meet the requirements of PIC 4020(1)(a) and, consequently, did not meet the requirements for the grant of the VC485 Skilled Graduate visa (CB 15 to 24).
The applicant applied to the Tribunal for review of the delegate’s decision. On 20 July 2012, the Tribunal determined that it did not have jurisdiction to hear the application for review as the application was not received within the prescribed period for lodgement (CB 48 to 51).
The applicant filed an application for judicial review. By consent the Court granted the relief sought by the applicant. It is apparent that the grounds for judicial review included an allegation of fraud by the migration agent. However, the reasons given in the consent order for relief was that the delegate’s decision had not been properly communicated to the applicant and consequently his review application was not out of time. The matter was, thus, remitted to the Tribunal to be considered according to law (CB 54 to 55).
On 3 June 2013, a differently constituted Tribunal invited the applicant to attend a hearing to give evidence and present arguments (CB 63 to 65). The applicant accepted this invitation and attended the hearing together with his (new) migration agent on 17 July 2013.
In a written submission sent prior to the hearing, the applicant’s migration agent alleged that the original agent had engaged in fraud when he lodged the visa application (CB 70 to 71). Attached to this submission was a copy of the applicant’s affidavit sworn on 15 February 2013 and filed in the original proceedings before this Court (CB 72 to 74).
The applicant relevantly deposed that:
a)he has been working as a plasterer;
b)in March 2011, he had discussed with some friends the fact that he was having difficulties in his relationship with his wife and she had threatened to remove him as a dependent from her visa. One of his friends referred him to Mr A of S & S Migration;
c)he attended the offices of S & S Migration on 17 March 2011;
d)he asked Mr A to help him obtain a visa, like a visa to study English language or a visa to study plastering;
e)Mr A told him he would be able to apply for a visa that would allow him to stay and work in Australia for one year (the fee for this would be $2,500.00). After that the applicant should see him to make a further application which would allow him to get permanent residence (there would be another charge for this);
f)he gave Mr A a copy of his passport, details about his family, the suburb he lived in and his mobile number;
g)he did not tell Mr A information which was included in the visa application; such as, his residential and email address nor that he had a skills assessment from the TRA. The information included in the visa application was not correct;
h)Mr A asked him to sign some forms which he did. He paid Mr A $1,500 in cash, the balance to be paid after he was granted the visa;
i)around a week later Mr A rang him and told him his visa was granted;
j)he then attended the offices of S & S Migration and Mr A showed him an email on the computer with his name on the email. Mr A printed a copy of the computer records, showing his name and details of the visa grant. He gave Mr A $1,000 in cash;
k)Mr A told him to come back in about a year to make another application which would give him permanent residence;
l)in about early April 2012, he learned from his friends that the migration agent had committed fraud in migration applications and that many peoples visas were in trouble and he should verify his position;
m)he went to the S & S Migration office but it was closed;
n)he was subsequently introduced to another migration agent who contacted the Department. She told him his visa application had been refused; and
o)he was not aware that Mr A had made an application for that sort of visa nor that the Department had written to him. He had not received a copy of the Department’s decision.
At the hearing, the Tribunal invited the applicant’s migration agent to “provide the Tribunal with relevant case law on the issues of agency and third-party fraud” and granted the applicant time after the hearing to provide further written submissions in support of his case (CB 114 at [36]). A further written submission was received by the Tribunal on 2 August 2013 from the applicant’s migration agent (CB 89 to 91). On 2 September 2013, the Tribunal invited the applicant to attend a further hearing on 18 September 2013 to “give evidence and present arguments relating to the issues arising in your case, including the issues raised at the first hearing and in the post – hearing submissions regarding allegations of fraud and the Tribunal’s jurisdiction.” (CB 94).
On 7 September 2013, the applicant’s migration agent responded to the hearing invitation, advising that neither the applicant nor the migration agent would be attending the hearing. The migration agent included a written response to the effect that (CB 100):
“The Tribunal should note that the Registered Migration Agent has not filed a Form 956 of his appointment, and had submitted the application in the name of the applicant, on an ostensible authority, based on the meeting the applicant had, seeking assistance to submit an application for student visa.
Beyond this, the applicant has no knowledge of what was submitted in the application or how the visa was secured, or on what class. This outright fraud was committed by the Migration Agent, the visa applicant had no part or had no knowledge of same. The visa applicant is not in a position to provide any more evidence at the present time, than what he had submitted about his dealings with the Migration Agent.
He therefore requests the Tribunal to make the decision on the material presently before it. Our submission, that the decision is vitiated by fraud, is reiterated.”
On 14 October 2013, the Tribunal decided to affirm the decision of the delegate to refuse to grant the applicant the visa (CB 104 to 148). In summary, the Tribunal concluded that the migration agent had acted fraudulently. It found that the fabrication of information on the application constituted fraud on the applicant and the delegate stultifying the operation of the legislative scheme relating to primary administrative decisions with respect to visa applications. However, it also found that the applicant was complicit in the fraud in the sense that, the applicant wanted a permanent visa that carried work rights and he was indifferent to or not too particular about how the migration agent went getting such a visa. Consequently, there was no jurisdictional error: see CB 132 at [109], [124] and [131] to [132]. The Tribunal further held that, in the event that it was in error in its interpretation of the applicant’s complicity, any fraud by the agent on the delegate and the resulting jurisdictional error have been undone by the Tribunal exercising all its powers and discretions of the delegate pursuant to s.349(1) of the Act (CB 144 at [134]).
The Tribunal then turned to consider the merits of the applicant’s review application. It identified the substantive issue as whether the applicant met the requirements of PIC 4020. The Tribunal found that the information regarding the purported skills assessment in the applicant’s visa application form lodged on his behalf was false or misleading information. The Tribunal held that the fact that the applicant may not have known the information was false and misleading was irrelevant. It further stated that, given its findings that the applicant colluded in the fraud at a more general level, it was open to it to find that the applicant did not act unwittingly in any event. Consequently, the Tribunal found that the applicant failed to meet the requirements of PIC 4020. The Tribunal also found that as the applicant’s skills had not been assessed as suitable for the nominated skill occupation by the relevant assessing authority the review applicant did not meet the requirements of cl.485.221 (CB 145 to146 at [43] and [145]).
By his Amended Application filed on 27 March 2014, the applicant has applied pursuant to section 476 of the Act for judicial review.
The applicant specified 7 grounds of judicial review in his amended application. Having regard to the decision in Kim, at hearing the applicant abandoned Grounds 1 to 5. The applicant now presses Grounds 6 and 7 which are as follows:
The Migration Review Tribunal (the MRT) erred in:
……………………………
6. Finding that the requirements of r 2.07(4) of the Migration Regulations 1994 (Cth) could be satisfied where an incorrect address was provided to the delegate of the Minister on the application form by the fraud of the migration agent, where that particular aspect of the fraud was unknown to the applicant.
7. The MRT erred in finding that there was a valid application for a Skilled (Provisional) (Class VC) visa, and therefore erred in finding that it was seized jurisdiction.
a.The MRT found there was a fraud on the process of the visa application.
b.The MRT erroneously found that the applicant was complicit in, or had colluded in, the fraud of the migration agent. This was a finding of fact that was necessary to be made, in order to engage the jurisdiction of the MRT to conduct the purported review.
c.This Court is not bound by the findings of fact as to the complicity or collusion of the applicant in the fraud of the migration agent, as those findings are “jurisdictional” and the MRT does not have power to conclusively determine jurisdictional facts.
d.This Court should now find, as a matter of fact, that there was fraud by the migration agent and that there was an absence of complicity or collusion in that fraud by the applicant; and
e.Following such a finding, the Court should find that there never was a valid application for a visa by the applicant, and therefore the MRT did not have jurisdiction to conduct the purported review, because there was no valid application in respect of which the delegate could have made an MRT – reviewable decision.
Does the Court have jurisdiction?
The first question I must determine is whether I have jurisdiction to consider and determine the application made for judicial review.
Submissions
The Minister submits that it follows from the applicant’s concession that he could have never succeeded in his visa application because he did not (and does not) fulfil the necessary skills criteria, that no jurisdictional error by the delegate or the Tribunal could have affected their respective decision to refuse the application.
There is no dispute that in applying for judicial review, the applicant is seeking to avoid the operation of s.48 of the Act. S.48 relevantly provides that a non-citizen in the migration zone, who had been refused a visa, may not apply for a visa of another kind (subject to exceptions which are presently not material) until that person has left Australia. The applicant submits that where a valid visa application has been made and that application refused, s.48 operates to preclude him from applying for another visa; such as, a student visa. The applicant submits that if there has been no valid visa application under s.46, s.48 will not operate to preclude him from applying for another visa.
The applicant alleges, in his substantive application, that the migration agent engaged in fraud against the applicant and the Department, which had the effect of subverting the process for the making and consideration of “valid visa applications” under ss. 46, 47, 65 and 338 of the Act, which caused s.48 of the Act to be perversely engaged.[2] In other words, the fraud of the agent had the effect of stultifying the process in the sense outlined by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. The applicant submits that if his evidence and arguments are accepted, there was never any valid visa application, which has the effect of unravelling the whole (purported) process back to the stage at which the fraud or defect first affected the process; in this case, at the making of the visa application. Consequently the applicant submits, PIC 4020 has no application in this case.[3]
[2] Closing Submissions of the Applicant at [4].
[3] Ibid at [98].
The Minister submits[4] that the jurisdiction of the Court under s.476 of the Act is normally considered as a “clone” of the High Court’s jurisdiction under s.75(v) of the Constitution. However, the jurisdiction under section 476 is more limited because:
a)First, this Court’s jurisdiction to grant one of the constitutional writs (or ancillary remedies) is only in relation to “migration decisions”: s.476(1). A “migration decision” is defined by s.5 as a “privative clause decision”, “purported privative clause decision”, which are in turn defined by s.474. Those decisions do not include the existence or validity of a visa application under s.45 of the Act. Thus the question of the validity or existence of a visa application is only within the jurisdiction of this Court if it is necessary to decide that question in the course of determining whether to grant one of the constitutional writs (or ancillary remedies) with respect to a decision that is within the Court’s jurisdiction.
b)Secondly, the Court has no jurisdiction over “primary decisions”, which includes a decision of the delegate in this matter: s.476(2)(a).
[4] Further Written Submissions of the First Respondent at [3] to [5].
The Minister argues that the only event over which this Court has jurisdiction is the decision of the Tribunal, which is a “privative clause decision” or “purported privative clause decision” under s.474.
The Minister submits that the pre-requisite for relief under s.476 is that the identified jurisdictional error could have affected the decision. The Minister relies on the decision of the Full Court in Lansen v Minister (2008) 174 FCR 14 (Lansen) at [90] to [125] (in particular [124]) per Moore and Lander JJ and [299] to [307] per Tamberlin J. The Minister submits that futility is a consideration not merely confined to the exercise of the Court’s discretion to grant relief but in satisfying itself there was jurisdictional error.
As the asserted invalidity of the visa application could not have affected the Tribunal’s decision, the Minister submits the applicant is not entitled to constitutional writs or ancillary relief with respect to that decision. Further, as no other decision or event in this matter is within the jurisdiction of the Court, the Court should not determine the validity of the visa application. The Minister further states that even if the Court did have jurisdiction to do so (which is not conceded), it should exercise its discretion by declining to do so on the basis of futility.
The applicant submits that there is no doubt that this Court has power to grant relief sought under s.476(1) of the Act, understood in the light of s.75(v) of the Constitution.
The applicant submits that the relief sought by the applicant is[5]:
a)a writ of certiorari quashing the decision of the Tribunal;
b)prohibition on the Minister from acting on the purported refusal of the visa application lodged by the agent;
c)a declaration to the effect that there was never any valid visa application made by the applicant in this matter.
[5] Closing Submissions of the Applicant at [96].
The applicant notes that the High Court granted a bare declaration in Plaintiff M 61/2010E v the Commonwealth (2010) in the exercise of its power under s.75(v) of the Constitution. If this position is to be contested, the applicant submits that notice of a constitutional matter will need to be given to the Attorney - General under s.78B of the Judiciary Act 1903.
Legislation
S.476 of the Act provides:
Jurisdiction of the Federal Circuit Court
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975 .
(4) In this section:
"primary decision" means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
S.5 of the Act provides that:
"migration decision" means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision.
and
"privative clause decision" has the meaning given by subsection 474(2).
and
"purported privative clause decision" has the meaning given by section 5E.
and
"non-privative clause decision" has the meaning given by subsection 474(6).
S.5E sets out the meaning of “purported privative clause decision as:
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
S.474(2) of the Act provides:
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
S.474(4) specifies decisions which are non-privative clause decisions by reference to specified sections of the Act. s.474(5) provides that the regulations may specify a decision or class of decisions which are not privative clause decisions. S.474(6) confirms that decisions falling within subsection (4) and (5) are non-privative clause decisions.
Consideration
S.476(1) confers on the Court the original jurisdiction of the High Court under s.75(v) of the Constitution “in relation to migration decisions”. Thus, the jurisdiction of the Court to grant constitutional and ancillary relief is confined to circumstances where the Court exercises its powers of judicial review “in relation to a migration decision.”
Section 75(v) of the Constitution provides that:
In all matters –
…
(v)In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction.
The jurisdiction given to this Court in migration matters is therefore the original jurisdiction of the High Court under s.75(v) of the Constitution to issue a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth.
S. 476(2) provides that the Court has no jurisdiction in relation to a privative clause, purported privative clause or a primary decision (which includes a decision of a delegate of the Minister).
It is well-established that a migration decision which is affected by jurisdictional error is not a privative clause decision as it is not a migration decision made under the Act and is, consequently, susceptible to judicial review. The privative clause provisions of s.474, do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s.75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 508 [83: Plaintiff S157.
The exercise of power by the Court is, therefore, conditioned by the existence of jurisdictional error affecting the decision of the Tribunal (being a decision, which is not a primary decision, of an administrative character made under the Act).
S. 474(4) specifies decisions which are non-privative clause decisions by reference to specified sections of the Act. The applicant’s substantial application is that there was no valid visa application under s.46 of the Act. This section is not one specified under s.474(4). Nor is it the case that the regulations provide that decisions made under s.46 are non- privative clauses: s.474(5). The applicant’s substantial application, therefore, requires the Court to be satisfied that the Tribunal’s decision was affected by jurisdictional error.
There seems to be no dispute between the Minister and the applicant that the concept of “futility” is an inherent component in the court’s satisfaction that a Tribunal’s decision is affected by jurisdictional error. The Minister argues that the applicant’s application for judicial review is futile because, even if the Court were satisfied that there was fraud by the agent which stultified the process in the sense of SZFDE (which the Minister disputes), the consequent jurisdictional error would make no material difference to the decision of the Tribunal. This is because, as the applicant has conceded, he did not and could not satisfy the criteria for the relevant visa. As the application for relief is futile the migration decision is not affected by jurisdictional error.
The Minister relies on the decision in Lansen. In that decision the majority of the Full Court stated:
“121. In our view, where in an application under the ADJR Act it is established that the decision-maker has failed to take into account a relevant consideration which he or she was bound to take into account, the next question to be determined is whether the consideration was so insignificant that the failure to take it into account could not have materially affected the decision.
122. If it be concluded that the failure was of that kind, then the application for review must fail. If on the other hand it be concluded that the decision-maker failed to take into account a relevant consideration which was not insignificant and there is a possibility that it could have affected the decision-maker’s decision, the applicant for judicial review under the ADJR Act will be entitled to ask the Court for a remedy under s 16(1) of the ADJR Act. The appropriate remedy is in the discretion of the Court.
123. In every case where a person who is aggrieved by a decision to which the ADJR Act applies makes out any of the grounds for a review in s.5 of the ADJR Act the question of remedy arises and, because of the provisions of s 16, that is always in the exercise of the Court’s discretion.
124. Similar considerations apply when the Court is exercising jurisdiction under s 39B of the Judiciary Act. If the Court concludes that the relevant decision-maker has failed to take into account a relevant consideration which the decision-maker was bound to take into account but the relevant consideration was so insignificant that it could not have materially affected the decision-maker’s decision, the application for the issue of the constitutional writs must be dismissed. If on the other hand the Court concludes that the decision-maker has failed to take into account a relevant consideration which the decision-maker was bound to take into account and the consideration was not so insignificant that the failure to take it into account could not have materially affected the decision-maker’s decision, the applicant seeking relief under s 39B will be entitled to the issue of the constitutional writs subject to the exercise of the Court’s discretion in that regard. The Court will exercise its discretion in accordance with the principles in the cases to which reference has been made: Ross-Jones [1984] HCA 82; 156 CLR 185; Ex parte Aala [2000] HCA 57; 204 CLR 82.
125. It follows, therefore, that the question of materiality as explained by Mason J in Peko-Wallsend [1986] HCA 40; 162 CLR 24 is relevant in a consideration as to whether or not error has been demonstrated on the part of the decision-maker rather than on the exercise by the Court of its discretion in relation to the relief which might be granted under s 16(1) of the ADJR Act or the issue of the constitutional writs under s.39B of the Judiciary Act.
The decision in Lansen has been applied by this Court in the context of the application of “inevitability” in determining whether there has been jurisdictional error: see SZSRY v Minister for Immigration and Citizenship [2013] FCCA 1284 at [54] to [56]
The applicant submits that there is utility in his application because the relief sought by the applicant would prohibit the Minister from acting on the decision of the Tribunal in any future application, including a student visa application.
An issue arises as to what relief it can be said, the applicant seeks. This is because, over the course of the proceedings, the applicant has stated in his written submissions, that he seeks further or, at least, different orders to those specified in his Amended Initiating Application: compare [3] and [37] above. I shall deal with this issue in due course.
The applicant relies on the decision in Plaintiff M61 and asserts that the High Court made a bare declaration. This is true. The applications for judicial review, were made in relation to a “Refuge Status Assessment” by a Departmental officer and subsequent Independent Merits Review (“IMR”), this being a process established by the Minister for the independent assessment of claims to protection obligations for the purpose of the Minister exercising his powers under s.46A and s.195A of the Act. The relief sought included injunctions and declarations.
S.46A precludes an authorised maritime arrival from applying for a protection visa subject to the Minister deciding that in the public interest the section should not apply. S.195A enables the Minster to decide, in the public interest, to grant a visa to a person in detention. The decision is discretionary and to be exercised by the Minister personally. The person conducting the assessment is a contractor not an employee of the Department. The Court held that, by reason of the establishment of the process for assessment or review for that particular purpose, the Minister was engaging in his powers under s.46A and 195A. Thus the inquiries having those statutory foundations, the applicable principles were well established (at [71]).
The Court found that the IMR made errors of law and the plaintiffs were not afforded procedural fairness. Relevantly for this case the Court considered the question “What relief may be granted?” as follows:
99. Because ss 46A and 195A both state, in terms, that the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising either power. That the Minister decided to consider exercising the powers and, for that purpose, directed the making of Refugee Status Assessments and Independent Merits Reviews does not entail that, if the process of inquiry miscarried, the Minister can be compelled again to consider exercising the power.
100. As was explained in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002[46], the unavailability of mandamus entails that there is no utility in granting certiorari to quash the recommendation which the reviewer made in each of these matters. It is thus not necessary to consider whether certiorari to quash the recommendations would lie. ……………………..
101. Although the plaintiffs' claims for certiorari and mandamus should be rejected, a declaration should be made in each case that the processes undertaken to arrive at the reviewer's recommendation were flawed in the respects that have been identified. In many cases, the conclusion that certiorari and mandamus do not lie would require the further conclusion that no declaration of right should be made. Why should a declaration be made in these matters?
102. The power to grant declaratory relief is a power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise"[48]. As pointed out in Ainsworth v Criminal Justice Commission[49], it is a form of relief that is confined by considerations which mark out the boundaries of judicial power.
103. In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties[50]. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question[51]. Each plaintiff has a "real interest"[52] in raising the questions to which the declaration would go. In these cases, the procedures which are said to be infirm were conducted for the purpose of informing the Minister of matters directly bearing upon the exercise of power to avoid breach by Australia of its international obligations. The statutory powers to the exercise of which the inquiries were directed are placed in the statutory and historical context earlier described. That context demonstrates the importance attached to the performance of the relevant international obligations by both the legislative and executive branches of the Government of the Commonwealth. Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers[53].
104. Accordingly, each plaintiff should have a declaration moulded in terms similar to the declaration made by this Court in Ainsworth. (footnotes omitted)
Following this decision, applications for judicial review to this Court seeking injunctive and declaratory relief in relation to assessments by IMR reports have been heard and determined. In many cases, as it was considered unnecessary to issue injunctive relief to restrain the Minister from acting on the reviewer’s report, only declaratory relief has been issued moulded in terms similar to the declaratory orders made in Plaintiff M61: see MZYLE v Minister for Immigration and Citizenship [2011] FMCA 589.
A recent decision of the Full Court in Prodduturi is relevant to the determination of this jurisdictional issue. The facts and legal issues in Prodduturi can be summarised as:
a)the applicant’s migration agent was S & S Migration;
b)the applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa;
c)the application contained false information, namely, that the TRA had assessed him as a cook;
d)the prescribed criteria which the appellant was required to meet was relevantly set out in cls 485.221(1) and 485.224 of Sch 2 to the Regulations. in particular, the applicant was required to satisfy the Public Interest Criterion 4020;
e)the immediate consequence of the inclusion of false information in the application was that the “the appellant was never able to satisfy the requirements of cl 485.221(1) and was not entitled, either at the time of the visa application or even now on this appeal, to the grant of a subclass 485 visa ” (at [4]);
f)a consequence of the failure to meet the requirements under PIC 4020 was that (subject to the Ministerial powers of dispensation in sub–cl(4)), he would be prevented from applying for most classes of visa for a period of 3 years: PIC 4020(2) (at [7]);
g)the appellant sought the setting aside of the Tribunal’s decision not because he believed himself to be entitled to a subclass 485 visa but because he wished to be relieved of the consequences of PIC 4020(2) (at [8]);
h)the applicant claimed he told his migration agent (who lodged the application) not to apply for the visa if he was not entitled to it and that it was his migration agent who had made up the false TRA reference and not him. That is, “it was a case of fraud by the migration agent” (at [9]);
i)at first instance the appellant argued that the Tribunal had lacked jurisdiction to entertain the matter because the fraud of the migration agent (at [18]);
j)the Minister did not cavil with the proposition that S & S Migration was the source of the false statement but contended that the applicant had failed to prove that he was not himself complicit in that fraud (at [19]);
k)the Court below concluded that the appellant had not proved that the migration agent had acted fraudulently and, since he bore the onus of proof, concluded that his case was not made out (at [11]) .
In the Court below, Cameron J identified the essence of the applicants’ submissions in connection with their grounds of review as being that their applications had been lodged as a result of fraudulent conduct on the part of their migration agent and that, as a result, those applications were not valid.[6]
[6] Kaur v Minister for Immigration and Border Protection [2013] FCCA 1805.
The Full Court in Prodduturi identified four basic issues which arise on the appeal, one of which was characterised as, “Was there any utility in the appeal?” The Full Court described this issue as follows (at [13 (4)]):
“The appellant submitted that the fraud of the migration agent had meant that the application which had been lodged on his behalf had not been a valid application. Consequently, the delegate had had no power to consider it, whether by acceding to it or by refusing it; more pertinently, she had had no power to find that PIC 4020 had not been satisfied. It followed that the delegate’s original decision was also invalid. That invalidity then had a consequential effect in relation to the review proceedings before the Tribunal which could not have been valid either if there had been no valid application for a visa. Consequently, the decision of the Tribunal was to be set aside. In this Court, but not in the Court below, an order was also sought setting aside the delegate’s decision.”
The Full Court ultimately dismissed the appeal on the basis that it lacked utility at [30] to [39] per Perram and Perry JJ, Gleeson agreeing (at [41]). The Court’s analysis can be summarised as follows:
a)the appellants avowed purpose in the judicial review proceedings was to bring to an end the effect that non-compliance with PIC 4020 had on the appellants future capacity to apply for visas [30];
b)if the appellants had succeeded in the Court below in setting aside the decision by the Tribunal to affirm the delegate’s decision on the basis that the Tribunal had no jurisdiction over the matter, this would have left the delegates’ decision in place. Consequently, the appellants would have remained unable to apply for a visa for 3 years [30];
c)the obstacles to the making of the order sought setting aside the delegates decision include:
i)the delegate, who is to be the respondent to the writ of certiorari, is not named as a party [34];
ii)the Federal Circuit Court lacks jurisdiction to entertain such a suit as the decision of the delegate is a primary decision within the meaning of the Act. (s.476(4)) and s.476(2) provides that the Federal Circuit Court has no jurisdiction in relation to primary decisions [34] to [35];.
iii)The Federal Court likewise cannot make such an order in its original jurisdiction: s. 476A [35].
The Full Court observed that the only Court with jurisdiction to entertain the present argument as to the validity of the visa application is the High Court under s.75(v) of the Constitution (at [35] to [36]).
The Full Court thus held that[38]:
“Consequently, there could be no utility in granting constitutional relief even if the applicant had shown the existence of jurisdictional error. The appropriate course in that circumstances to refuse relief: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at 10 [28] –[29] and 23 [87].”
The applicant concedes that the factual circumstances in Prodduturi bear some similarity with the present case. However, he submits that the case advanced in Prodduturi was, in law, radically different from the case advanced by the applicant in this Court. The applicant submits that the outcome in Prodduturi is best understood as a consequence of the legal form in which the case was advanced. He submits that the case advanced by him anticipates and avoids the issues that were dispositive in Prodduturi.
The applicant submits that legal obstacles identified in Prodduturi do not exist in the present proceedings because:[7]
a)the applicant does not seek an order setting aside the decision of the delegate. Accordingly, the jurisdictional limitation of the Court is not engaged;
b)the applicant has directly attacked the decision of the delegate, notwithstanding, it does not seek any orders in respect of that decision;
c)the delegate exercised the power of the Minister, and therefore, the Minister is a proper party in any challenge to the delegate’s decision. The Minister is the first respondent to this application.
[7] Further Submissions of the Applicant at[8].
The applicant argues that the orders sought are prohibition directed to the Minister and the Tribunal to prevent them from acting in a manner otherwise than consistently with the Court’s findings that the Tribunal decision was not lawfully made because there was no valid visa application, and therefore, no jurisdiction for the Tribunal to make the decision it made.[8]
[8] Ibid at[14].
The applicant submits that, whilst the Court lacks jurisdiction to make orders in respect of the delegate’s decision, nothing in s.476 prevents this Court, in the course of exercising its powers in relation to the Tribunal, from forming a view about whether a primary decision was lawful or unlawful. If the Court upheld the applicant’s application and made orders as sought, it would do so for reasons that involve the making of the necessary finding about the lawfulness of the delegate’s decision, by reason of the need to make findings about whether there was any valid visa application (ie collateral to the exercise of power).[9]
[9] Ibid at [18] to [19]
The applicant further argues that the delegate is before the Court through the naming of the Minister as the first respondent. He argues that the delegate was exercising the power of the Minister, not any power vested in him or her personally. Therefore, the proper party to any challenge to the delegate’s decision is always the Minister. The applicant notes that the Minister was also party to the proceedings in Prodduturi and formally submits that Prodduturi was wrong in this respect.[10]
[10] Ibid at [16] to [17].
The Minister submits that it is significant that the decision in Prodduturi did not consider the decision of the High Court in Minister v Bhardwaj (2002) 209 CLR 597 (Bhardwaj). In that judgment, in the course of their reasoning, Gaudron and Gummow JJ held (at [51], McHugh J agreeing at [63]) that “there was no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.” Hayne J (at [153]) held that, “Once it is recognised that a Court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences.”
The Minister observed that, in circumstances where this Court held that the visa application was a nullity for the reasons advanced by the applicant, the doctrine of issue estoppel may oblige the Minister to treat the delegate’s decision as invalid[11].
[11] Further Submissions of the Respondent regarding Prodduturi v Minister at [4].
This appears to be the legal premise upon which the applicant argues the Court would, in upholding the applicant’s application, make findings about the lawfulness of the delegate’s decision. The relevance of the principle enunciated by the majority in Bhardwaj was not addressed by counsel, other than the Minister in his last written submission. The doctrine of issue estoppel was referred to in passing in oral submissions by the applicant’s counsel. However, I have not had the benefit of detailed submissions regarding these matters.
I accept that the argument on appeal in Prodduturi may have proceeded on bases other than the utility that may arise from the collateral effect of a finding that the visa application was not valid. However, I have no doubt, respectfully, that the Full Court would have been alive to the decision in Bhardwaj. I am inclined to accept the Minister’s submission that the Full Court in Prodduturi likely considered that any such collateral effect from a finding that there was no valid visa was insufficient to render the relief sought utile.[12]
[12] Ibid at [4].
The Minister submits that although the Full Court’s analysis in Prodduturi is different from but not inconsistent with the arguments of jurisdiction in circumstances of futility put by the Minister, its analysis nevertheless applies to these proceedings as follows:
a)the applicant has expressly stated that he could never have qualified for the visa sought in the visa application and that his real purpose in this proceeding is to avoid the effect of s.48 (not PIC 4020 (2));
b)if the Tribunal’s decision was set aside, there would remain the delegate’s decision to refuse the applicant’s visa application, which would be sufficient to trigger the effect of s.48 of the Act;
c)the Court has no power to set aside the delegate’s refusal of the visa application made in the applicant’s name: ss476(1) and 476(2) of the Act.
Thus, even if the Tribunal’s decision were set aside, the delegate’s decision will remain as an instance of the applicant having applied for and being refused a visa sufficient to trigger the effect of s.48 of the Act. This proceeding is thus futile and should be dismissed for the same reasons as in Prodduturi.[13]
[13] Ibid at [3].
I turn now to consider what relief is sought by the applicant.
By his Amended Application the applicant seeks:
a)Prohibition against the first respondent (the Minister), restraining him from acting on the decision of the second respondent (dated 14 October 2013 ); and
b)Certiorari to quash the purported decision of the second respondent.
In his closing submissions, the applicant submitted that the Court should:
a)quash the decision of the Tribunal;
b)prohibit the Minister from acting on the purported refusal of the visa application lodged by the agent; and
c)grant a declaration to the effect that there never was any valid visa application made by the applicant in this matter.
It appears to me that, setting aside the orders sought to quash the decision of the second respondent (the Tribunal), the applicant has in his closing written submissions, in the case of prohibition sought against the first respondent (the Minister) recast the nature of the order sought and, in the case of the declaration sought, included a further type of relief. No doubt this has been done, bearing in mind the jurisdictional issues ventilated over the course of the proceedings. For example, the characterisation of his orders sought as prohibiting “the Minister from acting on the purported refusal of the visa application lodged by the agent” is clearly intended to be of wider application, directed to both the Tribunal decision and the delegate’s decision. It is obvious that the declaration more directly attacks the delegate’s decision.
I accept that the jurisdictional issue raised by the Minister at the first hearing of this application for review, was new and indeed novel. However, the applicant has not filed a Further Amended Application nor has he sought leave to file a Further Amended Application for the purpose of amending the relief sought. He has had plenty of opportunity to do so during the proceedings and has of course been ably legally represented.
I therefore will confine my consideration of the jurisdictional issue raised by the Minister to the relief sought by the applicant in his Amended Application. It goes without saying that I am bound to follow the legal principles enunciated by superior Courts unless persuaded otherwise.
The common circumstances in these proceedings and Prodduturi, are that:
a)the applicant’s substantial case is that there was no valid visa application (at the beginning of the process) as a consequence of fraud engaged in by their migration agent;
b)the applicants did not and could never satisfy the requisite criteria for the grant of the visa sought in their applications for a visa;
c)the purpose in seeking judicial review of the Tribunal’s decision is to avoid the operation of the effects of provisions of the Act and the Regulations. In Prodduturi, it was to avoid the impact of PIC 4020. In this proceeding it is to avoid the impact of s.48 of the Act.
I have earlier summarised the legal analysis of the Full Court in Prodduturi ( see [63] above).
The applicant has sought prohibition directed to the Minister (the first respondent in these proceedings) and certiorari to quash the Tribunal’s decision. Setting aside the jurisdictional issue raised by the Minister, the relief sought in the form of prohibition directed to the Minister generally would provide the legal foundation for the Court to embark on judicial review.
Strictly speaking the unavailability of mandamus means there is no utility in granting certiorari to quash the Tribunal’s decision: Plaintiff M 61 at [100]. Without doubt the grant of certiorari will operate to set aside the decision of the Tribunal. Following the reasoning in Prodduturi, this would, nevertheless, leave the decision of the delegate in place. As this decision was a decision to refuse the visa sought by the applicant, s.48 has effect.
The question then becomes does the order sought by the applicant to prohibit the Minister acting on the Tribunal’s decision address the obstacles identified by the Full Court in Prodduturi?
The answer in my view is that the grant of such an order would not. It would have no more effect than an order to quash the Tribunal decision. This is because the Minister would be restrained from acting on a decision that has been set aside and no more. There is no restraint on the Minister with respect to the delegate’s decision. Applying the legal analysis in Prodduturi, the legal effect of the delegate’s decision remains untouched. Thus, the operation of s.48 will not have been avoided.
The applicant submits that the delegate is before the Court by reason of the naming of the Minister. As the applicant properly concedes, this proposition is inconsistent with the decision in Prodduturi. There being no good reason why I should not follow the Full Court decision, I reject this argument.
In the circumstance I have formed the view I am bound to find that these proceedings would be futile for the following reasons.
Taking the applicant’s substantive case, if I am satisfied that the migration agent engaged in fraud (which the Minister in this case disputes), I must then determine whether this gives rise to jurisdictional error. It may not because the applicant was complicit in or indifferent to the conduct of the agent (the Minister argues the onus is on the applicant to satisfy the Court he was not complicit. The applicant argues it is for the Minister to establish he was complicit). It may not amount to jurisdictional error because the fraud does not rise to the level identified in SZDFE: namely the stultification of provisions having the particular importance in the scheme of the Act (at [53]). Finally, it may not because the error itself will not make a material difference to the outcome: Lansen. In this case the question becomes, if there is fraud what curial relief is sought to cure the fraud and will it make a material difference to the outcome.
In SZDFE the curial relief available, mandamus together with certiorari, made a material difference giving the appellant a right to press his claim to a protection visa in a fair hearing conducted according to law (at [22]). Likewise in in Plaintiff M61, the declarations were of utility being directed to a decision of the Minister yet to be made but which had been embarked upon through the assessment process.
As there is no utility in granting the constitutional relief sought by the applicant, any error identified by the Court arising from the alleged engagement by the migration agent in fraud, will not have a material effect on the outcome of the Tribunal’s decision. Thus a pre-requisite for finding jurisdiction error will not have been established: Lansen.
In circumstances where there can be no jurisdictional error, the Court’s jurisdiction under s.476 is not engaged.
Conclusion
For the reasons set out in this decision I would refuse to exercise jurisdiction. Consequentially, the Application for judicial review filed on 15 November 2013 and the Amended Application for judicial review filed on 27 March 2014 be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 11 March 2015
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