Wehbe v Minister for Home Affairs - [2018] HCA 50

HIGH COURT OF AUSTRALIA
EDELMAN J
SARA WEHBE PLAINTIFF
AND
MINISTER FOR HOME AFFAIRS DEFENDANT
Wehbe v Minister for Home Affairs
[2018] HCA 50
7 November 2018
S217/2018
ORDER
1.The plaintiff's application for an order extending time under s 486A(2) of the Migration Act 1958 (Cth) be refused.
2.The application for an order to show cause filed on 21 August 2018 be dismissed.
3.The plaintiff pay the defendant's costs.

Representation
A E Duc for the plaintiff (instructed by McEvoy Legal)
B K Lim for the defendant (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Administrative law – Judicial review – Jurisdictional error – Usual requirement that error must be material – When error will be material – Where visa criterion that there is no evidence that plaintiff has given bogus document – Where delegate of Minister for Home Affairs refused visa application because plaintiff provided bogus document – Where plaintiff accepted that document is bogus – Where plaintiff's migration agent made errors in communications with delegate – Whether agent's errors fraudulent – Whether agent's errors material.
Words and phrases – "bogus document", "compassionate or compelling circumstances", "deprived the plaintiff of the possibility of a successful outcome", "false or misleading statement", "jurisdictional error", "material", "materiality", "privative clause decision".
Migration Regulations 1994 (Cth), Sch 2, cl 820.226, Sch 4, public interest criterion 4020.

EDELMAN J. This is an application made by the plaintiff for an order to show cause why various relief, including constitutional writs, should not issue in relation to a decision of a delegate of the Minister for Home Affairs. The decision was to refuse to grant the plaintiff a Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa ("the visa"). A legal question raised by the Minister concerns the circumstances in which an application for a constitutional writ should be refused on the basis that an error is immaterial and, for that reason, not jurisdictional.
This application was brought after a series of errors made by a migration agent representing the plaintiff. The plaintiff was poorly represented by her migration agent, whose errors included a misstatement made to the delegate of the Minister. That misstatement was the basis of this application. However, the plaintiff has no reasonable prospect of establishing that the misstatement was made fraudulently. And the misstatement of her agent was not material to the delegate's decision. Unfortunately, the errors of the plaintiff's agent also deprived the plaintiff of the possibility of a review by the Administrative Appeals Tribunal at which she might have led additional evidence. But, for the reasons that follow, there is no legal basis upon which this Court can quash the decision of the delegate.
On 19 December 2016, the plaintiff lodged an "Application for migration to Australia by a partner", a form commonly described as a Form 47SP ("the Application"). The plaintiff says that she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] HCA 50
Decision Date: 7 November 2018

CaseChat Overview and Summary

The applicant, Mr Wehbe, sought judicial review of a decision by a delegate of the Minister for Home Affairs to refuse his visa application. The refusal was based on the delegate's finding that Mr Wehbe had provided a "bogus document" in support of his application, a criterion that, if met, would lead to refusal. Mr Wehbe accepted that the document in question was indeed bogus. The dispute also involved alleged errors made by Mr Wehbe's migration agent in communications with the delegate, and whether these errors were fraudulent or material. The matter came before Edelman J in the Federal Court of Australia.

The primary legal issue before the court was whether the delegate's decision constituted a jurisdictional error. This required the court to consider the materiality of any errors that may have occurred. Specifically, the court had to determine whether the delegate's finding that Mr Wehbe had provided a bogus document, and any associated errors by the migration agent, were such that they deprived Mr Wehbe of the possibility of a successful outcome, thereby rendering the error material and potentially leading to jurisdictional error.

Edelman J reasoned that for an error to be considered material in this context, it must have deprived the applicant of the possibility of a successful outcome. The court found that Mr Wehbe had accepted that the document provided was bogus. This acceptance meant that the criterion for refusal, namely the provision of a bogus document, was met. Therefore, any errors made by the migration agent in their communications with the delegate, even if they were errors of fact or law, were not material because they did not alter the fundamental basis for the refusal, which was the applicant's own admission regarding the bogus document. The court concluded that there was no jurisdictional error.

Consequently, the court refused Mr Wehbe's application for an order extending time under s 486A(2) of the Migration Act 1958 (Cth) and dismissed his application for an order to show cause. Mr Wehbe was ordered to pay the defendant's costs.

Orders

Orders of the court

1. The plaintiff's application for an order extending time under s 486A(2) of the Migration Act 1958 (Cth) be refused.

2. The application for an order to show cause filed on 21 August 2018 be dismissed.

3. The plaintiff pay the defendant's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDELMAN J

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Ratio Decidendi

Legal Principle Established

Established by: EDELMAN J

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