Singh v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 217

[2018] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S123 of 2018

B e t w e e n -

PRABHJOT SINGH

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 19 OCTOBER 2018, AT 9.31 AM

Copyright in the High Court of Australia

MR A. ALEKSOV:   May it please the Court, I appear for the applicant.  (instructed by Concordia Pacific)

MR T. REILLY:   If the Court pleases, I appear for the first respondent.  (instructed by Minter Ellison)

KIEFEL CJ:   Yes, Mr Aleksov.

MR ALEKSOV:   May it please the Court, your Honours.  As the Court will know, this case concerns the proper construction of item 4020 of Schedule 4 to the Migration Regulations, known as Public Interest Criterion 4020, or shortened off into PIC 4020.  The terms of the provision appear at application book pages 108 through 109.

As the Court may know, satisfaction of this provision is a criterion for the grant of many visas and, importantly, there is not only the potential for refusal of a visa if it is not satisfied but also a collateral consequence under subsection (2) of PIC 4020 of exclusion for three years from any other visas.  The policy of this provision was discussed in Trivedi, a case mentioned in the court below.

As far as we are aware, an search revealed about 943 published cases in a range of jurisdictions between the Tribunal and the Full Court and we anticipate there would be many more that are not published, and this Court ‑ ‑ ‑

KIEFEL CJ:   Yes.  Well, you could hardly say that it is a novel question warranting the attention of the Court.

MR ALEKSOV:   We submit, your Honour, that the way in which this case was run before the Tribunal and the way in which it pursued through the courts on judicial review do give rise to a question of construction about the provision as well as a question of principle about the way in which this Court’s decision in SZFDE concerning fraud in public law might operate in relation to provisions such as this one.

KIEFEL CJ:   Is not the decision of the Full Court of the Federal Court in Trivedi against you in relation to the underlying policy of the Act?

MR ALEKSOV:   We respectfully submit that Trivedi simply did not concern itself with the question of fraud, but to the extent that Trivedi does stand against us, we respectfully submit that it is wrong because it could not be possible for the underlying policy of the provision as expressed in explanatory memoranda to undermine a principle that works at the level of construction as might the principle in SZFDE.

We submit that that principle was found to be sufficiently strong so as to lead to a construction of privative clauses not to exclude the availability of writs in decisions commencing from Colonial Bank v Willan referred to in Kirk, but also has analogy with the principle of legality and, in particular, the implications of the attachment of procedural fairness and legal unreasonableness, that is, it does not need to be stated in the statute for there to be a combination of a mechanism for relief for a person where they say – or they claim – that fraud has affected the supposed engagement of the criterion.

To summarise the answer to your Honour’s question, we submit no, the policy is not against us, but to the extent that it might be thought to be against us we respectfully submit that was a misunderstanding of the policy or the policy goes too far.

BELL J:   Was the case below run on the basis that the decision was vitiated by fraud?

MR ALEKSOV:   Not quite, your Honours.  There is a series of cases which ‑ ‑ ‑

BELL J:   Well, can I just clarify, when you say not quite, it seemed to be important in the reasoning of the Federal Court that a forensic decision had been taken with respect to how the challenge was to be mounted and that did not go to the validity of the visa application itself.

MR ALEKSOV:   That is absolutely correct, your Honour.  It is certainly the case that the applicant did not run a case alleging that there was some jurisdictional fact absent from the validity of the Tribunal’s decision, as in cases such as Singh (2016).  However, the case that was run by the applicant in the courts below was that the Tribunal itself needed to assess the applicant’s claims of fraud for the purposes of determining whether or not his conduct met the terms given or caused to be given in PIC 4020, that is, there were at least two possible ways the applicant could have run the case alleging there was some invalidity affecting the visa application.

So the whole substratum of the Tribunal decision falls away or, alternatively, which was the way in which it was put, that simply as a matter of construction PIC 4020 accommodates a need for a Tribunal and any decision‑maker to assess whether or not there has been a relevant public law fraud which works in a way that means the applicant cannot properly be regarded as having given or caused to be given a bogus document to the Tribunal.  It is that latter point, the question of construction, that arises in this application, your Honours.

BELL J:   That issue is the issue with which the court was concerned in Trivedi, is it not?

MR ALEKSOV:   We submit no.  The court in Trivedi did not have its attention drawn to the potential influence of fraud, public law fraud.  The court in Trivedi was simply concerned with situations – to deal with an argument, quite precisely, that an applicant had put to the court in Trivedi that there was some need of knowledge of the provision of the bogus document on the part of the applicant, and the court in Trivedi rejected that argument.

BELL J:   Yes.

MR ALEKSOV:   But it simply did not concern itself with any potential effect of a fraud.

BELL J:   I am just trying to understand how the matter was run below.  A forensic decision was made not to challenge on the ground of fraud but you submit that it was put that, as a matter of construction, in light of a finding of fraud the court should not have concluded that the applicant gave the documents to the Minister.  Is that a fair ‑ ‑ ‑

MR ALEKSOV:   No, your Honour.  Let me try that again.  The applicant had submitted before the Tribunal that for the reason of a fraud conducted or perpetrated by his brother‑in‑law, he should not be regarded as having given or caused to be given the bogus document.  The Tribunal did not assess that claim because it did not think it was necessary to do so, applying what it understood to be the authority of Trivedi.

In the courts below, amongst other things, but in the courts below the applicant squarely contested the Tribunal’s position that it did not need to assess the applicant’s claim of fraud and we submit that the Full Court upheld the Tribunal’s position, it did not need to make any findings applying Trivedi. 

But, in our respectful submission, that was wrong because simply as a matter of construction – or not simply – as a matter of construction and applying SZFDE principles, the Tribunal was required to assess whether or not there was a relevant public law fraud which may have had the effect of meaning the applicant could not be regarded as having given or caused to be given the bogus document.  There were other lines of attack raised ‑ ‑ ‑

KIEFEL CJ:   You say that – your argument seeks to avoid the interposed question of knowledge but really when you say there was a fraud perpetrated by the brother‑in‑law and for that reason the applicant should not be taken to have given the document, the basis upon which that conclusion is to be reached is surely because he lacked knowledge and that puts you squarely in the position of – in the face of Trivedi.

MR ALEKSOV:   We say, your Honour, only one element of the applicant’s case was his absence of knowledge.  The additional elements were the relevant dishonesty by his brother‑in‑law and the stultifying effect of that dishonesty upon the operation of this provision of an enactment.  That takes it outside Trivedi because it was only the first question that Trivedi decided, being an applicant without knowledge should be excused from the operation of PIC 4020.  We do not say ‑ ‑ ‑

KIEFEL CJ:   The other aspect of Trivedi which is relevant here is the observation there about how it would be possible for the system to operate on the basis of a construction that was put there which is based upon ascertaining the knowledge of someone about the documents being bogus or, as here, on the basis that documents were fraudulent.  The system would have to undertake inquiries in each case.  Why would not one approach the question of construction on the basis that documents are simply those provided?  If they are bogus, that is it.  It is up to the applicant to ensure the quality of the documents provided.

MR ALEKSOV:   We accept that to a point, your Honour.  We would not accept that it is necessary for any decision‑maker to inquire into the question of fraud.  We accept that it is not necessary for a decision‑maker to inquire into the applicant’s state of knowledge, but if a person wished to take the benefit of the point of construction we are advancing they would need to persuade a decision‑maker with affirmative evidence to the requisite state of satisfaction that they had, in fact, been the innocent victim of a fraud, that fraud was on them, and that it also had a stultifying effect on the relevant system.

So the policy consideration that Trivedi says tends squarely against a softer construction of PIC 4020 does not really bite in relation to this kind of argument because it will always be for an applicant to advance sufficient information to a decision‑maker to persuade them of the relevant fraud.

In respect, your Honours, we submit if it were otherwise, the policy of the provision would prefer the – I mean, assuming the applicant’s factual points in his favour in this case, if it were otherwise, the system would prefer the interests of the fraudster over the interests of the innocent victim.  In our respectful submission, that is an unlikely outcome and one that should not be allowed to stand.

BELL J:   Looking at the particular facts of this case as a case to ventilate the issues that you seek to, an odd feature of the fraudster was that the fraud operated to establish, were it not detected, that the applicant met the necessary criteria for the grant of the visa.  In truth, the applicant did not meet the essential criterion for the grant of the visa.

MR ALEKSOV:   That question has not been decided, your Honour.  The Tribunal made observations that it may have had that effect, but no submission was made by the Minister in any of the courts below that there was some futility affecting the proceedings, nor that there was an immateriality in the sense recently decided in Hossain because the applicant was bound to fail on some other basis.  So, in my respectful submission, that is a matter that would be germane for the Tribunal upon any remittal and that oddity does not affect the cleanness of the question for the Court’s attention.

KEANE J:   Well, except that it goes to the justice of the case.  Why would this Court take up a case that, on the truth, had it been put in the application, would have led to the failure of the application?

MR ALEKSOV:   As your Honours may well know, the Tribunal has a mechanism to adjourn its proceedings to enable an applicant more time to comply – to satisfy relevant criteria.  As a matter of practice, it is commonly the case where someone learns of some technical default in their documents or satisfaction of some element of the visa that a Tribunal will simply grant them more time to do so.

So, when it comes to the question of the justice of the case, in our respectful submission, that is a matter that is most strongly concerned, or best considered, by a Tribunal upon remittal.  In my respectful submission ‑ I accept there is force in that submission, your Honour, but it does not stand against the grant of special leave, given the cleanness of the construction question that arises.

KEANE J:   The construction question is not so clean, is it?  Justice Bromberg at page 40, paragraph 5 states:

the criteria of engagement of PIC 4020(1) is that “the applicant has given, or caused to be given, to the Minister … a bogus document –

That actually does not state the text of PIC 4020 at all.  PIC 4020 actually says:

There is no evidence . . . that the applicant has given, or caused to be given –

Now, is there not another issue lurking here before we get to the question you are proposing, that issue being whether what is required is a finding of fact as to whether the applicant has given or caused to be given the bogus document or just whether there is evidence that he has, because it would seem that there is no question that there is evidence that he has.

MR ALEKSOV:   Yes, I accept the fairness of your Honour’s question.  Our answer is that in Federal Court authority that has been understood as importing a requirement upon the Tribunal to resolve conflicting questions of fact to determine whether or not such evidence as might exist is sufficiently probative to meet that particular criterion.  It is not just a matter of is there evidence on one side of the scale against an applicant and down comes the hammer.  It has been understood as the Tribunal actually needs to determine questions of fact that arise to assess whether or not such evidence as might appear to be against an applicant has sufficient probity about it to engage that criterion.

Now, that was never raised by the Minister in any of the proceedings below and, in my respectful submission, your Honours, that would really just be a matter for the Tribunal upon remittal to determine whether or not such material as was before it had the requisite level of probity to engage adversely to the applicant PIC 4020.

Your Honours, we have made also a submission that there is a constitutional background to this case, which is that if the applicant could not before the Tribunal persuade it that a relevant public law fraud had the consequence that he had not given or caused to be given a bogus document, then PIC 4020 would work as a de facto privative clause and would engage considerations of the kind considered by this Court recently in Graham with respect to confidentiality provisions in that it would deprive the potential for an applicant to obtain a writ to cure a public law fraud.

Now, on our constructions of the provision we respectfully submit that that constitutional question does not properly arise, but if it is put against us that the position in Trivedi works with full force according to its terms, including where an applicant submits that there is public law fraud, in our respectful submission, PIC 4020 is invalid as a de facto privative clause on the same basis as in Graham in that it is inconsistent with the place and purpose of section 75(v) of the Constitution.

At the moment, we have issued 78B notices in a defensive sense because it was unclear to me, given my late brief in the matter and only advancing to your Honours a reply, just how the Minister would put the point, but we submit that that is a very significant question which combined with the other issues in this case, together with the volume with which this provision is litigated, makes this not only an appropriate vehicle but also an important question that deserves the attention of this Court.  Unless there are any other questions, your Honours, I think that has exhausted what I could say in favour of the grant.

KIEFEL CJ:   Yes, thank you.  We need not trouble you, Mr Reilly.

The Court considers that there are insufficient prospects of success in this matter to warrant the grant of special leave.  Special leave is refused.

MR REILLY:   I seek costs, your Honour.

KIEFEL CJ:   You cannot resist costs, I take it, Mr Aleksov?

MR ALEKSOV:   No, your Honour.

KIEFEL CJ:   Special leave is refused with costs.

AT 9.48 AM THE MATTER WAS CONCLUDED