Public Interest Criterion 4020: Lessons from Wehbe v Minister for Home Affairs
In the High Court matter of Wehbe v Minister for Home Affairs  HCA 50 the court upheld the delegate of the Minister’s decision to refuse a visa applicant on the basis of a bogus document pursuant to the Migration Regulations 1994 (Cth) (‘the Regulations’) Schedule 4 Public Interest Criterion 4020.
There are important lessons from Wehbe for visa applicants who are required to satisfy Public Interest Criterion 4020. We provide some equally important key takeaways of this case further below.
In our article Everything you need to know about public interest criterion 4020 we discussed the requirements of Public Interest Criterion 4020. We also discussed important definitions in relation to providing bogus documents or information that is false or misleading to the Minister or their delegate, and when the Minister or their delegate will waive the requirements of Public Interest Criterion 4020.
Recap – The Elements of Public Interest Criterion 4020
Requirements of Public Interest Criterion 4020
Pursuant to Schedule 4 criterion 4020 of the Regulations, the Minister or their delegate may refuse a person’s visa application if:
- Bogus documents or information that is false or misleading is fraudulently provided to the Minister in relation to the application for the visa or a visa that the applicant held in the period of 12 months before the application was made; or
- The Minister is not satisfied with respect to the applicant’s identity.
Definition of a Bogus Document
Section 5 (1) of the Migration Act 1958 (Cth) (‘the Act’) defines a bogus document as a document that the Minister reasonably suspects is a document that:
- Purports to have been, but was not, issued in respect of the person;
- Is counterfeit or has been altered by a person who does not have authority to do so; or
- Was obtained because of a false or misleading statement, whether or not made knowingly.
Definition of False or Misleading
Information that is false or misleading in a material particular is defined under the Regulations as:
- False or misleading at the time it is given; and
- Relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
The Discretion to Waive the Requirements of Public Interest Criterion 4020
The Minister or their delegate may only waive the requirement of a bogus document or information that is false or misleading if satisfied that:
- There are compelling circumstances that affect the interests of Australia; or
- Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
Wehbe v Minister for Home Affairs  HCA 50
Background of Matter
The plaintiff applied for a partner visa in 2016 and engaged a migration agent who was authorised to act on her behalf with the Department of Home Affairs. In the plaintiff’s application, she stated that she was a citizen of Iran, was currently engaged, and expected to be married in June 2017. She declared that she was previously married in March 2014 and that it had ended in April 2015.
A delegate of the Minister requested that the plaintiff provide “evidence that [her] relationship has ended with [her] former spouse or de facto partner.”
The plaintiff provided the Department with a copy of her current marriage certificate, evidencing the marriage in June 2017, however the certificate recorded her conjugal status as “Never Validly Married”.
The plaintiff’s migration agent sent an email to the Department of Home Affairs after misinterpreting the plaintiff’s instructions, stating that:
“Regarding the applicant’s previous marriage, the divorce order is still in progress in Iran’s official authorities.”
The Minister’s delegate responded to the plaintiff and drew attention to the discrepancies of the information and documents provided, claiming that the marriage certificate suggests that the plaintiff provided false and misleading information, and required the plaintiff to provide a response within 28 days.
The migration agent responded on behalf of the plaintiff apologising and correcting the misstatements in further correspondence by stating that:
“The applicant was not able to receive the divorce order documents because she was not able to travel to Iran. A copy of the applicant’s birth certificate which is annotated by the divorce comments and also the legal divorce order by Iranian authorities.”
The Minister’s delegate refused to grant the visa to the plaintiff, for providing bogus documents because it was obtained on the basis of false and misleading information and therefore has not satisfied the requirements of Public Interest Criterion 4020. Moreover, because the migration agent failed to address the discretion to waive Public Interest Criterion 4020, the refusal was upheld.
Subsequently, the migration agent erroneously stated to the plaintiff that there was a 35 day prescribed period to apply for merits review in the Administrative Appeals Tribunal, which in fact, the prescribed period was 21 days.
The plaintiff only became aware of the actual prescribed period upon making her own inquiries which was ultimately too late as the 21 days had lapsed. The Administrative Appeals Tribunal confirmed that the plaintiff was unable to perform merits review of her matter because the Tribunal was out of time and therefore lacked jurisdiction.
The matter progressed to the High Court of Australia for judicial review, where the plaintiff sought equitable remedies and relief in light of her position. We discuss the topics of merits review and judicial review in our article: Appealing a Visa Refusal or Visa Cancellation – Merits Review and Judicial Review.
Ground for Judicial Review
The plaintiff’s principal ground for judicial review was before the High Court for judicial review on the basis that:
- The misstatement constituted fraudulent information and the delegate of the Minister’s decision is tainted by the fraud of the migration agent.
To enliven this ground, the plaintiff further submitted that:
- While representing the plaintiff, the migration agent made a series of errors;
- The plaintiff was poorly represented by the migration agent whose error included a misstatement to the delegate of the Minister; and
- The errors of the migration agent deprived the plaintiff from the possibility of merits review in the Administrative Appeals Tribunal.
The High Court’s Discussion
Interestingly, the High Court observed that:
“There was an insurmountable obstacle to the application, [namely that] there was no reasonable inference that the plaintiff’s agent engaged in fraud, and that the natural and only reasonably inference is that the plaintiff’s agent made a mistake.”
The plaintiff asserted that her migration agent fraudulently intended to represent that the plaintiff was still married. This assertion was negated in light of the correspondence provided by the migration agent in which the migration agent corrected the misstatement to the delegate of the Minister.
The High Court found that:
“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 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.”
The Minister submitted further legal argument in relation to relief by a constitutional writ under the Constitution which relates to a privative clause decision:
“Other than in exceptional circumstances [will] relief generally require the error to be one that was “material” in the sense that it deprived the plaintiff of the possibility of a successful outcome.”
“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. The issue is whether the erroneous misstatement in [the migration agent’s] email was material.”
The High Court further observed:
“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.”
“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. Other than in exceptional cases where a substantial miscarriage of justice arises irrespective of the materiality of the error the question is whether the same result was ‘inevitable’.
“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.”
The High Court’s Analysis of Wehbe
“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’.
“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”.
Conclusion of Wehbe
The High Court ultimately dismissed the plaintiff’s application for judicial review:
“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 time. 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.”
- First and foremost, when applying for a visa, the applicant and their advisor should always ensure that the document or information is true and correct before submitting any application or providing the document or information to the Minister or their delegate.
- If the visa applicant did not submit bogus documents or information capable of being false or misleading, the visa applicant could have avoided the need for court intervention.
- While the matter of Wehbe is not unique or special, it serves as an important warning for visa applicants of the consequences of not satisfying the requirements of Public Interest Criterion 4020.
- Migration agents, who are not also lawyers, generally only offer a limited scope of work and may not have the requisite knowledge or training to protect your legal interests.
Our Director of Litigation and registered migration agent, Craig DoRozario (MARN 1910298) has a wealth of experience and knowledge in civil matters and offers a full service in relation to your visa application and legal interests.
If you would like a free twenty (20) minute initial consultation to discuss your matter with Craig DoRozario and how we might be able to protect your interests, please contact our office on (07) 5532 3133.