Wehbe v Minister for Home Affairs

The High Court has dismissed an application to extend the time limit on an application to the Court for judicial review under the Migration Act 1958 (Cth), and also dismissed the plaintiff’s application for an order to show cause. The plaintiff’s migration agent made a series of errors on her application for a partnership visa, including a misstatement made to the Minister’s delegate. That misstatement regarded the plaintiff’s marriage status: she had been married in Iran in 2014, that relationship came to an end in 2015, but she did not have an official divorce decree, and the certificate of her second marriage to an Australian citizen in 2017 described her as ‘Never Validly Married’ (see [3]ff). The delegate refused the application on the basis that the applicant had provided ‘a bogus document or information that is false or misleading’, namely the ‘Never Validly Married’ marriage certificate, the statement in the application that she had been previously married, and the agent’s response that the divorce was still in progress (see [9]ff). Despite the agent emailing the delegate to attempt to explain the misstatement, the delegate stated that no information had been received to consider a waiver of the condition, and that the decision would stand (at [12]ff). The agent also wrongly advised the plaintiff on the time periods for merits review (at [15]ff), which led the plaintiff to apply to the High Court for an extension of time for the present application.

Edelman J held that the plaintiff had no reasonable prospect of establishing that the misstatement was made fraudulently. ‘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’ (at [17]) about the Iranian process and the plaintiff’s status (at [18]ff). Absent any reasonable prospect of proving fraud, the application for writs of mandamus, prohibition, certiorari and a declaration that there was no valid application, the application must be dismissed (at [21]). Further, Edelman J agreed that, in any case, the misstatement was not material to the delegate’s decision, in that the result would have been the same if the misstatement had not been made: the certificate itself recorded the incorrect marriage status of ‘Never Validly Married’ and for that reason was a bogus document, and would have required the delegate to waive the public interest criterion that applied, which the delegate could only do on the basis of ‘compassionate or compelling circumstances that affect the interests of an Australian citizen’, which the certificate could not do (at [24]ff). Consequently, the application had no reasonable prospect of success, and it would not be in the interests of the administration of justice to extend the time to allow the plaintiff to apply for judicial review (at [27]).

High Court Judgment [2018] HCA 50 7 November 2018
Result Application to extend time refused; application for an order to show cause dismissed
High Court Documents None
Hearing [2018] HCATrans 222  30 October 2018
This entry was posted in Case Pages, Decided Cases, Opinions by Martin Clark. Bookmark the permalink.

About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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