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.
CATCHWORDS

Wehbe v Minister for Home Affairs

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.
1 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.

2 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.

3 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 completed the Application, which was
uploaded by her migration agent. In the Application, she authorised the
Department of Home Affairs to send written correspondence to her agent,
including electronically. In the Application, the plaintiff disclosed that she was a
citizen of Iran and engaged to be married on 16 June 2017. She provided details
of her fiancé's Australian citizenship. She declared that she was previously
married on 8 March 2014 and that the previous marriage had ended on
10 April 2015.

4 On 28 February 2018, a delegate of the Minister sent the plaintiff a request for
more information in relation to the Application. One of the items on the checklist
of matters of further information requested was "Evidence that your relationship
has ended with your former spouse or de facto partner".

5 On 23 March 2018, the plaintiff provided the Department with a copy of her
marriage certificate certifying her marriage to her current husband ("the Marriage
Certificate"). The certificate was from the New South Wales Registry of Births,
Deaths and Marriages. It recorded her marriage dated 16 June 2017. The
Marriage Certificate described her conjugal status as "Never Validly Married".

6 On 24 March 2018, the plaintiff's agent sent an email to the Department.

Prior to sending this, the plaintiff had emailed the agent (on 21 March 2018) to
say that "[a]ll documents are ready except for the divorce decree which
unfortunately has coincided with the [Iranian] new year's holidays" and (on
23 March 2018) that "regarding my divorce decree which I do not have at the
moment (it) will be ready after the New Year". In the agent's email to the
Department he said:
 "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.

The applicant's previous visa was cancelled due to the fact that she was
separated from her ex-husband and she is on BVE [bridging visa] now."

7 On 27 March 2018, the delegate of the Minister wrote to the plaintiff

observing that in the Application the plaintiff had declared that she had been
married to her previous husband and that the marriage had ended on
10 April 2015, but that on 24 March 2018 her agent advised that the divorce
order was still in progress. The delegate observed that in the Marriage Certificate
the plaintiff had declared her conjugal status as "Never Validly Married". The
delegate added that bigamy is a criminal offence and said that the Marriage
Certificate suggests that the plaintiff had provided false and misleading
information in order to obtain a marriage in Australia. The delegate required a
response within 28 days.

8 On 26 April 2018, the delegate of the Minister refused the Application. The
delegate explained in the reasons that the plaintiff had not satisfied cl 820.226 of
Sch 2 to the Migration Regulations 1994 (Cth), which requires that public
interest criterion 4020 in Pt 1 of Sch 4 is satisfied.

9 The relevant criterion requires that there is no evidence before the Minister
that the applicant has given or caused to be given to relevant parties described
therein "a bogus document or information that is false or misleading in a material
particular in relation to ... the application for the visa". A bogus document is
defined in s 5(1) of the Migration Act 1958 (Cth) in terms that include "a
document that the Minister reasonably suspects is a document that ... was
obtained because of a false or misleading statement, whether or not made
knowingly".

10 The relevant criterion may be waived by the Minister if he is satisfied that

there are compelling circumstances that affect the interests of Australia, or that
there are compassionate or compelling circumstances that affect the interests of,
amongst others, an Australian citizen, which justify the granting of a visa.

11 The delegate concluded that "[t]here is evidence before the Minister that the
applicant has provided, or caused to be provided, a bogus document or false or
misleading information in relation to this visa application". The delegate referred
to: (i) the plaintiff's declaration on the Marriage Certificate that she was "Never
Validly Married"; (ii) the plaintiff's declaration in the Application that she had
been previously married; and (iii) the response of the plaintiff's agent that the
divorce order was still in progress. The delegate concluded that the "marriage
 Edelman J

3.

certificate therefore appears to be a bogus document, as it was obtained on the

basis of false and misleading information provided about [the plaintiff's] conjugal
status". The delegate noted that no response to the delegate's letter of
27 March 2018 had been received by the Department.

12 On 26 April 2018, the plaintiff's agent sent an email to the delegate of the
Minister attaching a screenshot of an email he had purportedly sent on
18 April 2018, which was within the stipulated 28 days for a response to be
provided to the delegate's letter of 27 March 2018. In the email purportedly sent
on 18 April 2018 the plaintiff's agent said:

"I should apologise and make a correction in my previous email.

The divorce order in Iran was finalised in June 2016. The issue was that
the applicant was not able to receive the divorce order documents because
she was not able to travel to Iran.

She has managed to employ a lawyer and used the legal capacities to
obtain the official divorce documents and get them trans [sic]

A copy of the applicant's birth certificate which is annotated by the

divorce comments and also the legal divorce order by Iranian authorities
dated March 2016 and registered June 2016 are attached in this email a
single pdf file.

It would be appreciated if you could please consider the new documents

and accept the legitimacy of the applicant's marriage [to the] sponsor."
(emphasis in original)

13 The delegate of the Minister replied to the agent's email, saying that the
decision would stand. The delegate said that: (i) there was no record of the
email in the screenshot having been received; (ii) if it had been sent, the agent
would have received an automatic acknowledgement email; and (iii) the
document attached was not uploaded to the plaintiff's online account with the
Department. The delegate concluded by saying that "[a]s I did not receive a
response or information to consider a waiver of PIC 4020 by the time I made my
decision, it still stands".

14 On 4 May 2018, the agent notified the plaintiff that the Application had been
refused. On 8 May 2018, the agent emailed the plaintiff with further detail about
the refusal, attaching the delegate's decision and erroneously advising the
plaintiff that she had 35 days to apply to the Administrative Appeals Tribunal for
review of the decision. On 16 May 2018, the agent again advised the plaintiff
that the prescribed period to apply for review was 35 days. The agent's error was
not identified until 23 May 2018, when the plaintiff correctly noted that the
prescribed period to apply for review was 21 days. On the agent's advice, the
plaintiff made an appointment with a lawyer.
 Edelman J

4.

15 On 24 May 2018, the plaintiff applied to the Tribunal for review of the
delegate's decision. On 25 June 2018, the Tribunal gave reasons, which were
sent to the plaintiff's solicitors the following day, explaining that the plaintiff was
taken to have been notified of the delegate's decision on 26 April 2018 and
therefore the prescribed period to apply for review ended on 17 May 2018. The
Tribunal concluded that it had no jurisdiction to determine the application for
review because it was out of time. No application was brought for judicial
review of the Tribunal's decision that it lacked jurisdiction.

16 The plaintiff's evidence concerning subsequent events is that on

1 August 2018 she sought and obtained a correction to the Marriage Certificate.
Her conjugal status was altered from "Never Validly Married" to "Divorced".

17 The plaintiff's circumstances are unfortunate, particularly when coupled with

the delay caused by her agent, which has had the effect that the delegate's
decision has never been the subject of review. However, there is an
insurmountable obstacle to the application in this Court, which is based only
upon the plaintiff's allegation that her agent provided fraudulent information to
the Minister in his email of 24 March 2018 and the delegate's decision is tainted
by this fraud. The obstacle to this application is that no reasonable inference that
the plaintiff's agent engaged in fraud can be drawn. The natural, and only
reasonable, inference is that the plaintiff's agent made a mistake.

18 The agent's mistake might have been in the way that he expressed his email.
It may be that the agent intended to convey the meaning that the plaintiff had
been delayed in obtaining the divorce decree document rather than the decree
itself. The plaintiff herself had referred to the two interchangeably. An inference
urged by the plaintiff that her agent had fraudulently intended to represent that
she was still married is further negated by the agent's reference in the same email
to the plaintiff's "previous marriage" and to her "ex-husband". Moreover, in the
email that he claimed to have sent on 18 April 2018, he corrected the 24 March
2018 email to explain that it was the "divorce order documents" that were the
issue.

19 Even if the agent's mistake was one of understanding rather than expression,
there is no reasonable prospect of a conclusion that the mistake was fraudulent.
The agent's statement in the 24 March 2018 email that the plaintiff's "divorce
order is still in the progress in Iran's official authorities" might simply have
reflected his misunderstanding of the plaintiff's statement to him that "regarding
my divorce decree which I do not have at the moment (it) will be ready after the
New Year".

20 The plaintiff submitted that an inference of fraud was bolstered by the agent's
reference to the plaintiff's inability to travel to Iran to "finalise the process" due
to visa-related issues. But while there is no evidence to suggest that the plaintiff
was unable to travel due to visa-related issues, the plaintiff did not dispute the
 Edelman J

5.

accuracy of the final sentence of the agent's email, in which he said that the
plaintiff's previous visa had been cancelled and she was on a bridging visa now.

21 The absence of any reasonable prospect of the plaintiff being able to prove
fraud means that the application for constitutional writs of mandamus and
prohibition, together with a writ of certiorari or a declaration that there was no
valid visa application, must be dismissed.

22 The Minister also relied upon a second obstacle to relief by a constitutional

writ, under s 75(iii) or (v) of the Constitution, for jurisdictional error in relation
to a "privative clause decision"1. That obstacle is that, other than in exceptional
circumstances, relief will generally require the error to be one that was "material"
in the sense that it deprived the plaintiff of the possibility of a successful
outcome2. The plaintiff did not submit that the alleged fraud was so pervasive, or
that there was any other exceptional circumstance, as to justify a conclusion of
jurisdictional error despite the lack of materiality in this sense 3. The issue is
whether the agent's erroneous misstatement in the 24 March 2018 email was
material.

23 Although the Minister put this submission as his primary submission, it is

logically secondary. It is not possible to determine the materiality of an error, or
whether materiality is required, until the nature of the error is known. Since the
error by the plaintiff's agent could not reasonably be shown to be fraudulent there
is no error capable of establishing the ground of judicial review. However, in
light of the detailed submissions of the Minister concerning materiality, which
were the focus of the Minister's case, I address that point below.

24 One manner of expressing the test of materiality is akin to the approach taken
in criminal appeals to whether a miscarriage of justice is substantial 4. Other than
in exceptional cases where a substantial miscarriage of justice arises irrespective
of the materiality of the error5, the question is whether the same result was

1
See Migration Act, s 474.
2
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at
788 [30], 795 [72]; 359 ALR 1 at 9, 19; [2018] HCA 34.
3
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at
789 [40], 795-796 [72]; 359 ALR 1 at 11, 19.
4
Kalbasi v Western Australia (2018) 92 ALJR 305 at 339 [156]; 352 ALR 1 at 45;
[2018] HCA 7. See also Nobarani v Mariconte (2018) 92 ALJR 806 at 813 [38];
359 ALR 31 at 38; [2018] HCA 36.
5
See, eg, Lane v The Queen (2018) 92 ALJR 689 at 695-696 [38]; 357 ALR 1 at 8-9;
[2018] HCA 28.
 Edelman J

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"inevitable"6. Ultimately, I do not consider that any misstatement by the agent,

even if fraudulent, deprived the plaintiff of the possibility of a successful
outcome. The result would inevitably have been the same irrespective of the
misstatement by the plaintiff's agent.

25 A decision to approve the visa based on satisfaction of public interest criterion

4020 required the delegate to have no reasonable suspicion that the Marriage
Certificate was obtained because of a false or misleading statement. The delegate
concluded that the Marriage Certificate was a bogus document because it was
"obtained on the basis of false and misleading information provided about [the
plaintiff's] conjugal status". That false and misleading information must have
been the information that led to the recording of the conjugal status on the
certificate as "Never Validly Married".

26 As the plaintiff's counsel properly conceded at the oral hearing, the Marriage
Certificate was a bogus document. The only basis to avoid the conclusion that
the delegate's decision was inevitable could be if there were a possibility that,
without the misstatement by the agent, the delegate, acting reasonably, would
have waived public interest criterion 4020. To establish that possibility in this
case, it would be necessary to conclude that the agent's misstatement could have
prevented the delegate from finding "compassionate or compelling circumstances
that affect the interests of an Australian citizen". But the misstatement by the
agent was unconnected with the rationale for the delegate's decision. Its absence
could not have militated against the decision or otherwise illustrated
compassionate or compelling circumstances. The delegate's decision had turned
only upon the Marriage Certificate being a bogus document. The 24 March 2018
email from the agent, to which the delegate referred in the reasons, was relevant
to that conclusion only because it contradicted the Marriage Certificate by
reiterating that the plaintiff had a "previous marriage" and referring to a "divorce
order" in progress. Although the agent's misstatement had led to the delegate
raising concerns about bigamy in the earlier letter to the plaintiff of 27 March
2018, those concerns did not form any part of the delegate's reasons for decision.

27 An extension of time is required for this application. Since the application

has no reasonable prospect of success, I do not consider that it is necessary in the
interests of the administration of justice to extend time7. The plaintiff's
application for an order extending time under s 486A(2) of the Migration Act
1958 (Cth) is therefore refused. The application for an order to show cause filed
on 21 August 2018 is dismissed with costs.
6
For recent examples, see Lindsay v The Queen (2015) 255 CLR 272 at 276 [4],
301-302 [86]; [2015] HCA 16; Castle v The Queen (2016) 259 CLR 449 at 472
[65], 477 [82]; [2016] HCA 46; R v Dickman (2017) 91 ALJR 686 at 688 [4]-[5],
697 [63]; 344 ALR 474 at 476, 488; [2017] HCA 24.
7
Migration Act, s 486A(2)(b); see also Spencer v The Commonwealth (2010) 241
CLR 118 at 139-141 [51]-[60]; [2010] HCA 28.
 Edelman J

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