Wehbe v Minister for Home Affairs

[2018] HCATrans 222

[2018] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S217 of 2018

B e t w e e n -

SARA WEHBE

Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 30 OCTOBER 2018, AT 2.02 PM

Copyright in the High Court of Australia

MR A.E. DUC:   Your Honour, if it pleases, I appear for the plaintiff.  (instructed by McEvoy Legal)

MR B.K. LIM:   May it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Duc.

MR DUC:   Thank you, your Honour.  I have some very brief submissions to make this afternoon.  Your Honour, the plaintiff relies on the order to show cause and the submissions and the affidavit filed on 21 August and the plaintiff’s reply submissions on 24 October.

Your Honour, in relation to the plaintiff’s main submission we say that this matter turns on what the delegate for the Minister for Immigration took into account when deciding to refuse the partner visa of Ms Wehbe, the plaintiff.  The plaintiff was refused a visa on the grounds she did not pass PIC 4020, which is the public interest criterion.  That was essentially on the basis, your Honour, that Ms Wehbe provided inconsistent documents which led the Department to believe that Ms Wehbe was in a bigamous relationship.

HIS HONOUR:   Did the Department say that in the reasons?

MR DUC:   They did not say that in the reasons.  The plaintiff was warned earlier by departmental information that they considered the relationship to be bigamous and I understand that might have been in correspondence on 27 March 2018 when the defendant wrote to the plaintiff outlining the offence of bigamy.

We say that the delegate, your Honour, came to that conclusion and that is in the delegate’s reasons provided in Ms Knight’s affidavit on – the decision record which essentially came to the conclusion that Ms Wehbe had provided a document which was a certificate of marriage which ticked the box – or indicated that she had never been validly married in the past.

HIS HONOUR:   This is page 90 of the ‑ ‑ ‑

MR DUC:   That is right, yes.  That is on the date of 27 June 2017.  The delegate then goes on to state that some further information had been received on 24 March 2018.

HIS HONOUR:   There is no dispute about that, is there?  There is no dispute that the “Never Validly Married” was completed on the marriage certificate?

MR DUC:   That is correct.

HIS HONOUR:   And there is no dispute that that was incorrect?

MR DUC:   There is no dispute from my side, your Honour, that that was incorrect.

HIS HONOUR:   Yes.

MR DUC:   What we say is the error in the decision‑making process was what the migration agent said on page 90 in relation to the email:

On 24 March 2018, the applicant’s migration agent responded to the Department in writing stating:  “Regarding the applicant’s previous marriage, the divorce order is still in the progress in Iran’s official authorities.  The applicant has had some visa related issues which made her unable to travel outside Australia to Iran to finalise the process.”

It is the next line, your Honour, that we say provides the basis for the relief that we seek and that is that the delegate says:

The marriage certificate therefore ‑ ‑ ‑

HIS HONOUR:   Which page are you on, Mr Duc?

MR DUC:   Page 90 – page 57, I am sorry, page 57 of the court book.

HIS HONOUR:   Thank you.  Yes.

MR DUC:   The third paragraph from the bottom, your Honour:

The marriage certificate therefore appears to be a bogus document -

That word “therefore” is quite an important word, in my submission, because it indicates that the delegate took into account the previous representation by the migration agent and that was entirely and utterly wrong.  There is no evidence that the migration agent was provided any information of that nature to say that the marriage – sorry, the divorce decree was still being sought in Iran.  That is simply not the case.

HIS HONOUR:   Do you accept that the marriage certificate was a bogus document, within the meaning of section 5 of the Migration Act?

MR DUC:   Your Honour, it was a mistake – I do accept that, but it was a mistake that was then bolstered by the email of 24 March 2018.  That was a material consideration that the delegate took into account.  So it was a bogus document.  It was a mistake.  That was indicated to the migration agent by the plaintiff but that information, again, was not put forward by the migration agent to the Department, to the delegate.  Essentially our submission is that the migration agent acted in a fraudulent manner on the occasion of sending this email without having any basis to do so.

HIS HONOUR:   Are you using the word “fraud” in the sense of genuine fraud or dishonesty or are you simply using the word “fraud” to mean mistake?  If you are using it in the former sense, is there any basis upon which it can be said that an inference could be drawn that the migration agent was acting intentionally or dishonestly?

MR DUC:   Your Honour, I concede that that is a very difficult point to make out why he sent that email.  I cannot put to your Honour why that email was sent but it has no basis in anything that the client had told the migration agent.  It is fraudulent to that extent.  Now, fraud is infinite in its varieties and there is no submission that I can make as to why this particular paragraph made its way into the migration agent’s email to the Department but it is patently wrong.  It is not even a mistake, your Honour.  This information was not passed from the client.  It was not countenanced by the client.  There was no authority given by the client in order to provide that information to the Department.

HIS HONOUR:   What page is the email from the migration agent to the Department to be found?

MR DUC:   Your Honour, that is page 47 of Ms Knight’s affidavit.

HIS HONOUR:   Yes, thank you.  Yes, Mr Duc.

MR DUC:   Thank you, your Honour.  Why we say that the information was fraudulent is because the plaintiff had already sent an email to the migration agent on 21 March 2018 and that is at Mrs Wehbe’s affidavit at exhibit SR‑4 where, in the second paragraph ‑ ‑ ‑

HIS HONOUR:   Which page is this?

MR DUC:   I am sorry, your Honour, that is not tabulated and that is SR‑4 of Ms Wehbe’s affidavit.

HIS HONOUR:   Yes.

MR DUC:   In the second line, your Honour, it indicates - says:

All documents are ready except for the divorce decree which unfortunately has coincided with the new year’s holidays.

That is all that Ms Wehbe indicated to the migration agent about the unavailability of that particular document.

HIS HONOUR:   There is a real resonance, is there not, between the language that is used by Ms Wehbe, which is “All documents are ready except for the divorce decree” and the language that is used by the migration agent which is “the divorce order or decree is still in progress”?

MR DUC:   In my submission they are fundamentally different statements.  The migration agent is indicating that Ms Wehbe needed to travel in order to get that document - that is not the case – and also indicated the divorce decree was still in progress.  Now, Ms Wehbe was of course aware ‑ ‑ ‑

HIS HONOUR:   He does refer to her previous marriage and her ex‑husband which does seem to suggest that the marriage is no longer on foot.

MR DUC:   That is right and Ms Wehbe understood that and knew that.  The divorce certificate that he has attached at SR‑12 ‑ ‑ ‑

HIS HONOUR:   What I am asking, Mr Duc, is how am I to draw an inference of fraud when there are references to her previous marriage and her ex‑husband and you say that despite those references the migration agent nevertheless has fraudulently stated that the divorce order is still in progress, intending to mean and to represent that the applicant is still married?

MR DUC:   That is right, indicates still married even though the applicant had advised the migration agent and the migration agent knew that she was no longer married to her first husband.

HIS HONOUR:   All right.

MR DUC:   Your Honour, going on to what the Department did with that information, in my submission the delegate impermissibly took into account that email and that is clear from the decision record where, in Ms Knight’s affidavit at page 57, the delegate indicates that:

The marriage certificate therefore appears to be a bogus document, as it was obtained on the basis of false and misleading information provided about your conjugal status.

Now, it is clear that the delegate put together those two pieces of information – “Never Validly Married” – and took into account the fact that the divorce decree still had not been obtained or appeared, on the migration agent’s own words, that it was still in progress.  The delegate of course would come to a conclusion that the plaintiff was not divorced yet. 

However, in my submission, it is the latter fact, that second statement about Ms Wehbe going to travel to Iran to obtain the divorce decree that simply had no basis in fact.  That was a fraudulent, made‑up representation for some unknown reason.  That equates to fraud in my submission, your Honour.

In my submission, your Honour, the position of the plaintiff can be summarised before the delegate as this.  The plaintiff was divorced in 2015 and that divorce decree appears at Ms Wehbe’s affidavit at SR‑12 where the divorce certificate quite clearly indicates the date of divorce is 6 March 2016 and the date of registration was 12 June 2016.  That is at SR‑12, your Honour.

Secondly, the plaintiff had advised the migration agent and the migration agent knew that the divorce decree had been granted but there was simply an issue with having it obtained.  The migration agent, for whatever reason, made fraudulent representation to the Department and the plaintiff, in my submission, was blameless in relation to that representation.  She was not consulted about it, she did not authorise it to be made, she did not consent and did not approve.

This, in my submission, fundamentally affected the decision of the delegate and the delegate’s decision, which has a flavour of bigamy – and I used that word in the context of earlier correspondence that the Department had sent on 27 March to indicate that they were considering bigamy to be a serious issue – and in relation to the fraud that that actually induced the Department, induced the delegate to make a decision to decline the visa on the grounds that Ms Wehbe did not meet the public interest criterion as she provided a bogus document.

Your Honour, my final submission, this is a very grave problem that Ms Wehbe faces now, that due to no error of her own, due to no discussion or authorisation of the migration agent, the migration agent has seriously affected Ms Wehbe’s ability to stay in Australia and to be granted a partner visa.

HIS HONOUR:   Was any application made for waiver of requirement 4020?

MR DUC:   No, your Honour.  Finally, your Honour, in my submission, the appropriate remedy is to have the matter sent back to the Department for reconsideration by the delegate.

HIS HONOUR:   Yes.

MR DUC:   Unless you have any questions, your Honour, thank you.

HIS HONOUR:   Thank you, Mr Duc.  Mr Lim.

MR LIM:   Your Honour, I should perhaps formally read the affidavit of Elizabeth Warner Knight affirmed on 18 October 2018.

HIS HONOUR:   Yes, both affidavits are taken as read.

MR LIM:   Thank you, your Honour, and your Honour would have seen my written submissions of 18 October 2018.

HIS HONOUR:   Yes.

MR LIM:   You appreciate we oppose the extension of time on the grounds of futility – an extension of time would be futile because the application has no reasonable prospect of success.  I put that submission on two bases.  The first basis is that the alleged fraud, even if made out on the facts, cannot be shown to have been material to the delegate’s decision.

HIS HONOUR:   Is that right?  The delegate had a power, did she not, to waive requirement 4020?

MR LIM:   Yes, your Honour.

HIS HONOUR:   If there had been fraud, and if the fraud was a factor in the decision‑making process, could it be said that the decision would inevitably have been the same in light of the power to waive?

MR LIM:   In the absence of an application for waiver.

HIS HONOUR:   Does there need to be an application for waiver?

MR LIM:   In my submission, yes, an applicant is invited to make submissions as to what the compelling circumstances affecting the interests of Australia are that would justify the waiver of the public interest criterion.

HIS HONOUR:   Where does one find the requirement in the regulations that an application be made for waiver before a delegate can decide whether or not to waive a public interest criterion?

MR LIM:   I should perhaps qualify my answer.  It is not a legal precondition that there be an application.  The legal precondition, if your Honour has public interest criterion 4020, appears in subparagraph (4) of that criterion.  Your Honour sees there the Minister’s power to waive the requirements of paragraphs (1)(a) or (b), if satisfied ‑ ‑ ‑

HIS HONOUR:   Yes.

MR LIM:   So I accept that the legal precondition is the Minister’s satisfaction but in circumstances where the Minister invites submissions on why the criterion should be waived, if no submissions are made it is legally open and reasonable for the Minister not to be satisfied.

HIS HONOUR:   Where in the book do I find the invitation in relation to waiver?

MR LIM:   Does your Honour have the Invitation to Comment that starts at page 48 of the exhibit to Ms Warner Knight’s affidavit?

HIS HONOUR:   Yes.

MR LIM:   This is where the Department sets out the issues of concern on which the applicant is invited to comment.

HIS HONOUR:   Yes.

MR LIM:   In the course of that, public interest criterion 4020 is raised.

HIS HONOUR:   Yes.  It is the bottom of page 59 – if you believe there are any compelling circumstances, or compassionate or compelling circumstances.

MR LIM:   That is so.

HIS HONOUR:   So the real difficulty arises because any of those compassionate or compelling circumstances was contained in the clarification email which was not received and was said not to have been sent prior to the deadline?

MR LIM:   There is an email chain that postdates the delegate’s decision.

HIS HONOUR:   Yes.

MR LIM:   There is an issue about whether an email was or was not sent on 18 March prior to the decision.  I do not accept that that email contains any representations about compelling circumstances justifying the waiver but I would accept this much, that if some correction was to be made to the migration agent’s representations about the status of the divorce, that correction was to be found in the – if I can call it the draft email dated 18 March that in my submission your Honour would find was not sent.

HIS HONOUR:   Yes, but that is really the issue though, is it not?  Had that email been sent prior to the delegate’s decision being made then if there had been a fraud upon which the delegate had acted, that email would have amounted at least to a possibility that compelling circumstances could be found for waiver of requirement 4020.

MR LIM:   I will accept that, your Honour, subject to one qualification which is if there had been the postulated fraud, it is hard to imagine the 18 March email, which expressly seeks to correct the representation, having been sent.  In my submission, the draft email dated 18 March is evidence of an absence of fraud.

HIS HONOUR:   Yes.

MR LIM:   So it is somewhat problematic to postulate that scenario.

HIS HONOUR:   Your submission really then comes down not to the materiality point but then to the absence of fraud point?

MR LIM:   I do not abandon the materiality point, your Honour.  I put it on both bases.  In my submission, a fair reading of the delegate’s decision shows that the 24 March email had no material bearing on the decision in fact reached.

HIS HONOUR:   What I understand you to mean by no material bearing is that the decision would inevitably have been the same.  That is the notion of materiality that is picked up in Hossain and based on Stead and so on, which you cite.

MR LIM:   Yes.

HIS HONOUR:   But if that is the case, then one needs to ask whether or not, if there were a fraud, whether any of the matters contained in the fraud could have possibly amounted to compelling or compassionate circumstances so that the decision would not inevitably have been the same.

MR LIM:   In my submission, the way the fraud in this case is alleged it is wholly disconnected from the fact of the bogus document, which I understand the plaintiff to accept.  There is nothing about the fraud which would bear on the delegate’s assessment of the fact of the bogus document.  I accept that once we are into the territory of a discretion to waive PIC 4020, questions about what inevitably would have been decided become much more difficult to determine on an application for judicial review.  But there is no connection between the fraud as alleged and the basis of the delegate’s decision.

HIS HONOUR:   There does not need to be.  There needs only to be a connection between the fraud as alleged and the outcome of the decision, not necessarily the reasoning process.  So if the fraud has no connection with the bogus document, but it might have had a connection with compassionate or compelling circumstances, then there is materiality.  Do you accept that?

MR LIM:   I accept that at a level of generality, but in practice the compelling or compassionate circumstances have to be circumstances that would justify waiving the consequence of the bogus document.

HIS HONOUR:   Yes.

MR LIM:   In my submission, your Honour knows that the delegate has decided to refuse the visa based on the existence of the bogus document.  It is very difficult to see how ‑ ‑ ‑

HIS HONOUR:   And the migration agent’s email, which is also recited as one of the facts upon which the decision is based.

MR LIM:   Your Honour, I have addressed that in writing.

HIS HONOUR:   Yes.

MR LIM:   Perhaps I should clarify what I say about that.  There are two constructions of that paragraph in the delegate’s decision that are consistent with the fraud as alleged having played no role in the decision and those two constructions are these.  First, the delegate was setting out the procedural background to the decision, setting out aspects of the invitation to comment and the response.  The second available construction is that the 24 March email implicitly contains the proposition that there was a previous marriage and that it is to that extent and to that extent only that the 24 March email had any bearing on the delegate’s decision and that the status of the divorce and any reasons for the status of the divorce did not play a role in the conclusion that the antecedent marriage certificate was a bogus document.

HIS HONOUR:   Yes.

MR LIM:   So in circumstances where the delegate has decided to refuse the visa based on the fact of the bogus document, it is very difficult to see why subsequent fraud committed on 24 March 2018 would bear in any way on the decision to waive public interest criterion 4020. 

I do have the alternative basis on which I have put the submissions to futility which, as your Honour appreciates, is that there is no reasonable prospect of the plaintiff establishing fraud on the facts.  My friend took your Honour to page 38 of the plaintiff’s affidavit and I think I heard him say that that was the only material probative of what the migration agent knew about the plaintiff’s divorce.  I should direct your Honour also to page 42 of the plaintiff’s affidavit, which is an email from the plaintiff to her migration agent which refers to the divorce decree and says:

which I do not have at the moment (it) will be ready after the New Year -

It is to similar effect as the email on page 38.

HIS HONOUR:   I suppose another construction, or another possibility, to which you do not refer, is that the email sent by the migration agent was neither mistaken nor fraudulent, but was simply mis‑expressing in similar words to the expression that the plaintiff had used the notion that the divorce decree had not yet been received.

MR LIM:   Yes.

HIS HONOUR:   The document, that is, rather than the legal order.

MR LIM:   Yes, your Honour.  I accept that.  There are ambiguities about what the email meant and they are such that your Honour would not draw inference of dishonesty.

HIS HONOUR:   What about the second paragraph to which Mr Duc referred:

The applicant has had some visa related issues which made her unable to travel outside Australia to . . . finalise the process.

MR LIM:   I have no submissions to make about that.  It is unclear from the evidence before the Court what source that might have had.

HIS HONOUR:   All right.  There is no evidence of any visa‑related issues?

MR LIM:   Standing here now, your Honour, I am not in a position to provide a definitive answer to that because of course I am conscious that the plaintiff had an application for a visa on foot.  There is some evidence contained in that email.  The migration agent asserts that she is on a Bridging visa E, which is what “BVE” would stand for.  There may well have been issues associated with a visa of that kind or the visa that she in fact held that may have affected entitlements to leave Australia and return but I cannot assist your Honour with that, standing here.

HIS HONOUR:   All right.

MR LIM:   Unless I can be of further assistance, they are my submissions, your Honour.

HIS HONOUR:   Yes, thank you, Mr Lim.  Mr Duc, anything in reply?

MR DUC:   I have nothing further, thank you, your Honour.

HIS HONOUR:   Just before you sit down, could I ask about this paragraph about the applicant’s visa‑related issues and being unable to travel outside Australia?  Mr Lim says that it may relate to the final paragraph about the previous visa being cancelled and her being on a bridging visa now.  There is no dispute about the final paragraph, I understand, but your allegation of fraud is related to the previous paragraphs.

MR DUC:   That is right.  If I can extend – and I understand the submissions from the Bar table, but I do not have any evidence that Ms Wehbe was planning to go back to Iran to pick up the document herself.  Indeed, the document was emailed by her brother.  So whether she was planning on leaving to go overseas to pick it up herself, if that is your Honour’s question, it would only be a submission from myself ‑ ‑ ‑

HIS HONOUR:   Is there evidence about her brother intending to pick it up, or ‑ ‑ ‑

MR DUC:   Ms Wehbe obtained the document by email, so ‑ ‑ ‑

HIS HONOUR:   She ultimately obtained it by email.

MR DUC:   Ultimately obtained by email and was not intending to travel to Iran to pick it up herself.

HIS HONOUR:   Yes.

MR DUC:   Finally, your Honour, I would say that in Ms Wehbe’s affidavit there is no suggestion that she was going overseas to pick it up herself and had been stopped by her BVE condition from travelling overseas.

HIS HONOUR:   Yes.

MR DUC:   Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Duc.  I will reserve my decision and I will deliver reasons and orders on Wednesday morning next week.  The parties will be advised of the time for delivery but there is no necessity for the parties to attend. 

The Court will adjourn.

AT 2.36 PM THE MATTER WAS ADJOURNED