FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders dated 11 March 2015 of the Federal Circuit Court of Australia be set aside.

3.    The matter be remitted to the Federal Circuit Court of Australia for reconsideration according to law.

4.    The first respondent pay the appellant’s costs of the appeal, agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The central issue in this appeal is whether the Federal Circuit Court of Australia (FCCA) erred in finding that, in the particular circumstances of the case, it lacked jurisdiction because there was no utility in granting the judicial review relief sought by the then applicant (who will be referred to hereafter as the appellant).

Summary of background facts

2    The background facts are not in dispute. The following summary is drawn primarily from the decision dated 14 October 2013 of the Migration Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)), in which the Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a Skilled (Provisional) (Class VC) visa (the skilled visa).

3    As will shortly emerge, at the heart of the case lies the appellant’s claims that he was the victim of fraudulent conduct by his migration agent, which fraud, he contends, also tainted the subsequent decision-making process. The skilled visa application form was lodged online on 23 March 2011. It was stated on the form that the appellant had received no assistance in completing the form. The form gave a contact address for the appellant in Kingsville, Victoria. The form also stated that the appellant could be contacted by email and a particular email address was provided. The form further stated that the appellant had applied to an assessing authority for an assessment of his skills for his nominated skilled occupation, which was as a solid plasterer. The assessing authority was identified as Trades Recognition Australia (TRA). The form claimed that TRA had assessed the appellant’s skills on 15 September 2010 and a reference number was provided in respect of that alleged assessment.

4    Prior to making his decision, the Minister’s delegate invited the appellant to comment on certain “adverse information”. The delegate informed the appellant of an allegation that his visa application form had been lodged with “the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information” and that the Department had located a file containing the appellant’s personal details and application reference numbers in S & S Migration’s office. He was further informed that TRA had no record of having provided the claimed skills assessment. The appellant was invited to comment on these matters, as well as on the specific allegation that he had provided false and misleading information to the Department in relation to his skilled visa application. The appellant did not respond to that invitation.

5    On 16 April 2012, the delegate refused to grant the appellant a skilled visa on the basis that the appellant had provided false or misleading information to the Department in relation to his visa application and that he was therefore unable to meet PIC 4020.

6    PIC 4020 is a reference to the public interest criterion which is set out in Sch 4 of the Migration Regulations 1994 (Cth) (the Migration Regulations). The appellant had to satisfy this criterion to be eligible for the grant of the skilled visa sought by him. PIC 4020 was relevantly in the following terms:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

(2)    The Minister is satisfied that during the period:

(a)    starting 3 years before the application was made; and

(b)    ending when the Minister makes a decision to grant or refuse the application;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

…

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5)    In this clause:

“information that is false or misleading in a material particular” means information that is:

(a)    false or misleading at the time it is given; and

(b)    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.

Note:    Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

7    The appellant sought a review of the delegate’s decision by the Tribunal. The Tribunal as originally constituted found that it did not have jurisdiction because the application for review was not received within the prescribed time. This decision was set aside on a judicial review by the FCCA. It is unnecessary to describe the details of either of these proceedings apart from noting that, in his first judicial review challenge in the FCCA, the appellant raised for the first time an allegation of fraud on the part of his migration agent. In the initial FCCA proceeding the appellant filed an affidavit dated 12 June 2012. In that affidavit the appellant said that when he asked the agent for assistance in lodging a student visa application the agent told him that he would look after his migration matter and get him a work permit for four years. The appellant said in this affidavit that he was never provided with a copy of the visa application form which was lodged on his behalf and that the agent had given his own email address as a contact address.

8    In support of his review application before the Tribunal as reconstituted, the appellant provided a copy of his FCCA affidavit dated 12 June 2012 as well as a copy of another affidavit dated 15 February 2013 which he had also filed in the FCCA in support of his initial application for judicial review. In essence, he said in that second affidavit that he had come to Australia in June 2009 as a dependent of his wife, who held a student visa. He said that he had never lived at the Kingsville address nominated on the visa application form and that the email address was not his. He described the contact he had with his migration agent, to whom he had been referred by a friend. He said that he told the agent that, because his marriage with his wife was experiencing difficulties, he wanted his own visa and he asked the agent to obtain a visa “like a visa to study English language or a visa to study plastering”. He said that the agent told him that he would apply for a visa that would allow the appellant to stay and work in Australia for one year, that he would be charged a fee of $2,500 and that, after the one year, he could seek permanent residence. He said that he never told his agent that his address was in Kingsville, or that he had made an application for a skills assessment or had obtained a skills assessment from TRA. He further deposed that, when he met with the agent about a week later, he was shown an email on the agent’s computer which contained his name and he said that he was told that his visa had been granted. He said that he had had no further contact with the agent. He said that in early April 2012 he was told by friends that the agent had committed fraud in migration applications. He said that he went to the agent’s office but it was closed. He then engaged another migration agent who subsequently told him that his application for a visa had in fact been refused. He stated that this was the first time that he was aware of that fact or that the agent had made an online application for him for a skilled visa.

9    The decision record for the Tribunal’s second decision also summarises the appellant’s oral evidence which was given at a further Tribunal hearing. The Tribunal referred to the appellant’s acknowledgment that he had no evidence to demonstrate that he could meet the requirements for a skilled visa. The Tribunal also noted that it put to the appellant for comment the basis for its tentative view that false or misleading information had been provided to the Department in relation to his skilled visa application. The Tribunal noted that the appellant’s response to these claims was that he had gone to the agent to seek assistance for a student visa to study English. The Tribunal explained to the appellant that, to meet the relevant test, it needed to be satisfied not only that the appellant did not provide false or misleading information but also that he did not cause that information to be given. The Tribunal noted both the appellant’s response to these matters as well as submissions made on his behalf by his new migration agent. In short, his new agent submitted that the appellant did not provide the false or misleading information to his original agent and that he had been defrauded.

10    The Tribunal noted in its decision record that, after the hearing, the appellant’s new migration agent provided a written submission in which it was claimed that the appellant had approached the original agent to seek assistance in making an application for a student visa and that the agent had committed “outright fraud” on the appellant because it was the agent who submitted the visa application online, which application contained materially incorrect particulars that the appellant said he had never provided to the agent.

11    In its decision record the Tribunal stated that, in view of the material it had received from the appellant, it was not able to satisfy itself that there had been any fraud and that, in view of the seriousness of the appellant’s allegation, it needed to obtain further evidence. Accordingly, it invited the appellant to appear before it again. The appellant declined that invitation on the stated basis that he had no knowledge of either what was submitted in the visa application or the “outright fraud” committed by his agent.

12    The Tribunal’s decision record contained a detailed statement of its reasons for making the following findings which underpinned its decision to dismiss the review application and to affirm the delegate’s decision:

(a)    It did have jurisdiction under s 347 of the Migration Act 1958 (Cth) (the Migration Act) to review the delegate’s decision as requested by the appellant notwithstanding his claims of fraud by his agent (at [67]).

(b)    The skilled visa application was a valid application within the meaning of s 46 of the Migration Act in circumstances where the appellant knew that a visa application was being lodged on his behalf for a “work visa” and he had consented to his agent lodging such an application (at [65]).

(c)    The appellant’s claim that he had instructed the agent to apply only for a student visa and no other visa was rejected and found to be “contrived to support the review applicant’s claim that the agent acted outside of his authority” (at [92]).

(d)    The appellant believed that he had been granted a visa which permitted him to work in Australia and the Tribunal was not satisfied that the appellant “truly believed that the visa had necessarily been obtained legitimately given that he has no trade qualifications and he does not speak English”. Moreover, the Tribunal said that it was not satisfied that the appellant did not suspect that his agent “was not acting entirely above board” (at [100]).

(e)    The appellant was never provided with a copy of the skilled visa application that was lodged on his behalf. Much of the information in it was “incorrect or misleading [and]… was fabricated by the migration agent and not the review applicant” (at [104]).

(f)    The migration agent had acted fraudulently and his conduct was motivated by greed and the pursuit of money (at [109]).

(g)    Notwithstanding the finding that the appellant played no part in concocting the false or misleading information contained in the visa application form, the appellant was complicit in that fraud because he was “indifferent” as to the contents of the visa application (at [123]). The essence of the Tribunal’s reasoning on this matter is reflected in [124] of its decision record:

On the material before it, the Tribunal has not accepted the review applicant’s claim that he instructed the agent to apply for a student visa. On the facts of this case, like in SZGJO, it is not open to the Tribunal to conclude that the review applicant and his agent had a common purpose of misleading the Department by lodging a false and misleading visa application. However, on the material before it, it is open for this Tribunal to find that the review applicant wanted a permanent term visa that carried with it work rights and he was “…not too particular how he got it” SZGJO (at [38]), His instructions to the agent were general in so far as he retained and paid the agent to lodge a permanent “work visa” on his behalf. He signed documents the contents of which he did not understand or enquire about and he paid the agent’s fee when it fell due. Based on these findings, the Tribunal finds that the authority given by the review applicant to his agent extended to lodging the visa application on-line on his behalf. Based on the claims and evidence as a whole, and the findings above, it is open for this Tribunal to conclude that the review applicant was complicit in the fraud on the primary decision maker, which is described here below in the event that the Tribunal is in error in its interpretation of the review applicant’s complicity.

The second judicial review proceeding in the FCCA

13    The appellant sought in the FCCA a judicial review under s 476 of the Migration Act of the Tribunal’s decision dated 14 October 2013. His amended application contained seven grounds of review. At the hearing only the sixth and seventh grounds were pressed. They were to the effect that the Tribunal had erred in finding that there was a valid visa application and that, consequently, it had jurisdiction to review the delegate’s decision.

14    At first blush it might seem strange that the appellant who had initiated the review proceeding in the Tribunal then wished to argue that the Tribunal lacked jurisdiction. The explanation is to be found in s 48 of the Migration Act, the relevant effect of which was to preclude the appellant from lodging in Australia a fresh application for a student visa in circumstances where his skilled visa application had been refused (the relevant terms of s 48 are set out in [18] below). In substance, the appellant’s objective was to obtain a finding that the skilled visa application was not a valid visa application for the purposes of s 46 of the Migration Act which, on the appellant’s case, would then have ramifications for decision-making processes in respect of that application, including the Tribunal’s jurisdiction.

15    The particulars provided in support of the seventh ground of judicial review included that the Tribunal had erroneously found that the applicant was complicit in his agent’s fraud and that this issue, being a jurisdictional fact, should be revisited by the FCCA.

16    The appellant sought the following relief in his amended judicial review application:

(a)    prohibition against the Minister restraining him from acting upon the Tribunal’s decision;

(b)    certiorari to quash the Tribunal’s decision;

(c)    mandamus to compel the Tribunal to hear and determine the matter according to law;

(d)    costs; and

(e)    such further or other orders as the Court considered appropriate.

17    It might be interpolated at this point that, at the hearing before the FCCA conducted on 22 September 2014, the appellant’s counsel stated in his opening address that “to be safe”, the appellant also sought a declaration of right concerning the operation of s 48 of the Migration Act. A similar reference was made in the appellant’s written outline of submissions dated 3 October 2014, which were filed prior to the resumed hearing by the FCCA on 19 December 2014. The transcript for the hearing on 22 September 2014 also records the appellant giving oral evidence in chief to the effect that, if he were to succeed in his judicial review application, he would apply for a student visa.

18    It is desirable to set out the relevant terms of ss 46, 47 and 48 of the Migration Act as in force at the relevant times (and noting that s 48(1A), which deals with a visa applicant’s state of mind, has since been added to s 48 (also amended in other presently immaterial ways)):

46    Valid visa application

(1)    Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a)    it is for a visa of a class specified in the application; and

(b)    it satisfies the criteria and requirements prescribed under this section; and

…

47    Consideration of valid visa application

(1)    The Minister is to consider a valid application for a visa.

(2)    The requirement to consider an application for a visa continues until:

(a)     the application is withdrawn; or

(b)    the Minister grants or refuses to grant the visa; or

(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

(3)    To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)    To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

48    Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas

(1)    A non‑citizen in the migration zone who:

(a)    does not hold a substantive visa; and

(b)    either:

(i)    after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or

(ii)    held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

…

19    The FCCA conducted two separate hearings in respect of the amended judicial review application. These hearings took place on 22 September 2014 and 19 December 2014, before the Full Court handed down its decision in Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5; 144 ALD 243 (Prodduturi). After Prodduturi was published on 29 January 2015, the FCCA invited the active parties to file written submissions concerning the significance of that decision to the question whether the FCCA had jurisdiction to hear and determine the amended application for judicial review. Both parties availed themselves of this opportunity.

The FCCA’s reasons for holding it lacked jurisdiction

20    The primary judge’s reasons for concluding that the FCCA lacked jurisdiction to hear and determine the amended application for judicial review related to her Honour’s acceptance of the Minister’s submission that, because the appellant acknowledged that he was not eligible for the skilled visa, there was no utility in the proceeding. The steps in the primary judge’s reasoning in reaching that conclusion may be summarised as follows:

(a)    The FCCA had no jurisdiction to review “a primary decision” as defined in s 476(4) of the Migration Act, which definition includes a decision of the Minister’s delegate.

(b)    The FCCA had jurisdiction to review a decision of the Tribunal which was a “migration decision” as defined, as long as it was not a primary decision and jurisdictional error was demonstrated.

(c)    The amended application for judicial review was futile because, even if the FCCA was satisfied that the conduct of the migration agent involved fraud which stultified the decision-making process in the sense of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (SZFDE), any consequential jurisdictional error would make no material difference to the Tribunal’s decision because the appellant acknowledged that he did not, and could not, satisfy the criteria for the skilled visa. This meant that the amended application was futile and not affected by jurisdictional error.

(d)    Prodduturi was applicable because, even if the Tribunal’s decision was set aside, the delegate’s decision remained and that was sufficient to trigger the effect of s 48 of the Migration Act. The FCCA has no power to set aside the delegate’s decision.

(e)    The only relevant relief sought by the appellant in his amended judicial review application was for prohibition and certiorari and, although reference was made in the appellant’s closing submissions to declaratory relief, no formal application was made to amend the judicial review application to include this specific relief. Consequently, the FCCA confined its consideration to the relief sought in the amended judicial review application.

(f)    The request for prohibition did not address the obstacles identified in Prodduturi because there would be no restraint on the Minister with respect to the delegate’s decision and the operation of s 48 would not be avoided. Prodduturi could not be distinguished and should be applied.

21    For these reasons, the primary judge concluded that the proceedings were futile because, even if her Honour was satisfied that the original migration agent had engaged in fraud, this may not amount to jurisdictional error particularly where any such error would not make a material difference to the outcome of the Tribunal’s decision (applying Lansen v Minister for Environment and Heritage [2008] FCAFC 189; 174 FCR 14).

The appeal

22    The sole ground of appeal is that the primary judge erred in finding that there was no utility in circumstances where the appellant asserts that:

(a)    there is utility in the relief sought by him because of the potential effect on the operation of s 48 of the Migration Act of the principles of issue estoppel and the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 (Bhardwaj); and

(b)    the primary judge erred in finding that the proceedings were wrongly constituted because the Minister’s delegate was not a party in circumstances where, as the appellant submitted, it was sufficient to name the Minister as a party (which necessarily included any delegate).

23    The parties’ primary submissions are reflected in the following section of these reasons for judgment.

Disposition of the appeal

24    It is convenient to start first with Prodduturi, which the primary judge regarded as being directly on point and bound her Honour to find that the FCCA lacked jurisdiction.

25    The appellant initially contended that Prodduturi was either distinguishable or, alternatively, was plainly wrong. Prodduturi was an appeal from a decision of the FCCA. The FCCA had dismissed Mr Prodduturi’s application for constitutional writs which were directed to the then Migration Review Tribunal. The Tribunal had affirmed an earlier decision of the Minister’s delegate which refused the appellant a Skilled (Provisional) Class VC subclass 485 visa (subclass 485 visa). Both the delegate and the Tribunal found that Mr Prodduturi was not entitled to a subclass 485 visa because he did not satisfy PIC 4020, which formed part of the prescribed criteria for a subclass 485 visa in cl 485.224 of Sch 2 to the Migration Regulations.

26    The subclass 485 visa application had identified Mr Prodduturi’s trade as that of a “cook” and it stated that he had been assessed in that trade by TRA. Both the delegate and the Tribunal found this information to be untrue because Mr Prodduturi had never been certified as a cook by TRA or any other assessing authority. Accordingly, he could not satisfy cl 485.221(1), which required that a visa applicant had to be assessed by a relevant assessing authority as suitable for his nominated skilled application. Mr Prodduturi did not contest that he was never qualified for a subclass 485 visa. He explained that he sought judicial review of the Tribunal’s decision because of its implications for the operation of PIC 4020 in Sch 4 of the Migration Regulations (the relevant terms of which are set out in [6] above). Relevantly, if the Minister was satisfied that the applicant had been refused a visa because false or misleading information had been given, the person was prevented, subject to Ministerial dispensation, from obtaining a visa to which PIC 4020 applied for a period of three years from the date of refusal of the person’s earlier visa application.

27    As Perram and Perry JJ observed in Prodduturi at [8], Mr Prodduturi’s motive in challenging the Tribunal’s decision in the FCCA and then in bringing his appeal was not because he believed that he was entitled to a subclass 485 visa, but rather was because he wished to be relieved of the consequence for him of the operation of PIC 4020 (namely that without dispensation, any fresh application by him for a visa within a period of three years from the date of the delegate’s decision would be refused by reason of PIC 4020(2)). That motive is similar to the appellant’s objective in this case of avoiding the operation of s 48 of the Migration Act.

28    In the FCCA, Mr Prodduturi argued that he should not be held responsible for the misstatements in his subclass 485 visa application because it was his migration agent who had made up the false TRA reference and he claimed that he had told his agent not to apply for a visa if he was not entitled to it. He said that his migration agent had acted fraudulently.

29    The Tribunal found that the Mr Prodduturi did not know of the false statement concerning the TRA assessment in the visa application, but this was because, so it found, Mr Prodduturi was indifferent to the contents of the application. In those circumstances, the Tribunal found that he was responsible for the agent’s misleading statement even if he lacked actual knowledge of it.

30    The issue of whether the migration agent had acted fraudulently was reconsidered by the FCCA in the light of the evidence placed before it. It concluded that Mr Prodduturi had not proved that his agent had acted fraudulently. Moreover, Mr Prodduturi was responsible for the misleading statement because he was aware that the agent was lodging his visa application even if he did not know precisely what was in it. In other words, the FCCA found that Mr Prodduturi was complicit in the false statement made by his agent.

31    On appeal, the Full Court held that the FCCA erred in concluding that Mr Prodduturi had not proved that his agent had acted fraudulently and that he bore the onus of proof on that matter. The Full Court noted that there was no dispute that the agent had acted fraudulently, hence no issue of onus of proof arose. The Full Court found that this finding also tainted the FCCA’s conclusion that the appellant was complicit in his agent’s fraud.

32    Notwithstanding these errors, the Full Court dismissed the appeal on the ground of lack of utility. The Full Court emphasised that, in his amended notice of appeal in that Court, Mr Prodduturi sought for the first time to have set aside not only the Tribunal’s decision, but also the delegate’s decision. This was because, unless the delegate’s decision was also set aside, PIC 4020 would operate to prevent Mr Prodduturi from obtaining a visa to which PIC 4020 applied for three years from the date of the delegate’s decision (which was made on 27 April 2012).

33    The Full Court concluded that it should refuse relief, even if there was jurisdictional error, because there was no utility in granting the constitutional writ relief. This was because:

(a)    Mr Prodduturi did not seek an order in the FCCA to have the delegate’s decision set aside;

(b)    the delegate was a necessary party to any application to set aside her decision but she had not been joined as a party either below or on appeal;

(c)    the FCCA had no jurisdiction to entertain an application to set aside the delegate’s decision; and

(d)    the Court had no such jurisdiction on appeal.

34    The joint judgment in the Full Court stated at [34] that, even if the first two obstacles could be overcome, the issue of the lack of jurisdiction on the part of the FCCA to review the delegate’s decision would remain. That was because the delegate’s decision was a “primary decision” under s 476(4) of the Migration Act and s 476(2)(a) provided that the FCCA had no jurisdiction in relation to a “primary decision”. The Full Court noted that the only court with jurisdiction to review and set aside the delegate’s decision based on a claim that the visa application was not valid was the High Court under s 75(v) of the Constitution.

35    It is important to note that the appellant in Prodduturi did not seek declaratory relief relating to the validity of his subclass 485 visa. Moreover, it is evident that the Court’s attention was not drawn to cases such as Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523, where it was held that the question of the validity of a visa application was a matter to be determined objectively by the Court. Bare declaratory relief was granted in that case on that subject matter.

36    To the extent that the appellant pressed his submission that Prodduturi is plainly wrong and should be overruled, it is important to bear in mind the high threshold for a Full Court of this Court to find that an earlier Full Court decision is wrong. It is not enough that a later court takes a different view of the law where two views are open. Rather, it must be convinced that the earlier Full Court was clearly wrong (the relevant principles are discussed in Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268-269, Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at 560-561 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at 256-257 per Allsop J).

37    The Minister did not seek to defend that aspect of the Full Court’s reasoning in Prodduturi relating to the failure to join the delegate as a party. In our view, it was correct of him not to do so. There was no need separately to join the delegate in circumstances where the Minister himself was a party. In our respectful view, this particular aspect of Prodduturi was clearly wrong. That does not mean, however, that the critical part of the Full Court’s reasoning on the issue of jurisdiction was also clearly wrong. For the following reasons, we consider that, although that reasoning was not clearly wrong, Prodduturi is nevertheless distinguishable.

38    As noted above, the issue of jurisdiction arose in Prodduturi in circumstances where the appellant amended his notice of appeal to seek an order to have the delegate’s decision set aside. This provided the immediate context for the Court’s consideration of the issue, noting also that Mr Prodduturi did not seek any declaratory relief concerning the validity of the subclass visa application. The Full Court’s consideration of the lack of utility in granting relief must be assessed in the light of these circumstances.

39    These matters provide a sufficient basis for distinguishing Prodduturi and confining it to its own particular circumstances. The reasoning in Prodduturi is not determinative of the issue of jurisdiction here for the following reasons:

(a)    Unlike the position in Prodduturi no application is or was made in the present proceeding to have the delegate’s decision set aside.

(b)    The FCCA plainly did have jurisdiction here to review the Tribunal’s decision and, in an appropriate case, to set aside that decision on the grounds of non-complicitous fraud on the part of the visa applicant and to declare that the original visa application was invalid. Such a declaration would have foreseeable consequences for the parties (see further below).

(c)    We consider that the observations in Bhardwaj at [8] per Gleeson CJ and at [53] per Gaudron and Gummow JJ concerning the power or duty of an administrative decision-maker to “self-correct” or proceed to make a fresh decision with respect to a person’s rights where an earlier decision is vitiated by jurisdictional error apply equally where there is fraud (see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176 and Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [97]). In our view, while it may be true to say that the delegate’s decision remains in place notwithstanding that a decision of the Tribunal has been set aside, that is not to say that the delegate’s decision has the same legal efficacy after a court has set aside a Tribunal decision and declared that no valid visa application had been made because of fraud.

(d)    If the Minister (or his delegate) does not take the course of self-correction in the light of the declaratory order, it would be open to the appellant to commence proceedings in the High Court under s 75(v) of the Constitution, to seek to have the delegate’s decision set aside and to take advantage of any estoppels which might arise from the separate and earlier FCCA proceedings. In his written submissions, the Minister also contended that it might be possible for a person in these circumstances to bring proceedings in the FCCA. The basis for that contention involved a complex analysis which focused on the inter-relationship between a refusal to consider a visa application and the operation of s 65 of the Migration Act and whether such a refusal would constitute a “primary decision” as defined in s 476(4) so as to deny the FCCA jurisdiction under s 476(2). It is unnecessary to express a view on these matters for the purposes of disposing of the appeal.

40    With respect, in our view it was also factually incorrect for the FCCA to find, in [79]-[80] of the reasons for judgment, that the issue of declaratory relief was raised only in closing submissions. It is true that in [2] and [96] of his closing written submissions dated 3 October 2014 in the FCCA, the appellant submitted that his visa application was not a valid visa application and he sought a declaration to this effect. As early as 22 September 2014 in opening submissions, the appellant's counsel had, however, clearly stated that the appellant sought a declaration “to be safe”, as already noted in [17] above. There can be no doubt that this issue of a declaration was expressly raised by the appellant’s counsel in his opening address in the FCCA below. It is true that no formal amendment application was made but that is not determinative in circumstances where the Court was asked in the amended application to grant any other relief it saw fit, a declaration was sought at the commencement of the hearing, and the Minister raised no objection to declaratory relief being added to the relief being sought by the appellant. The result was that the FCCA did not properly turn its mind to the relevance of declaratory relief in addressing the question of utility. In our respectful view it was erroneous for the FCCA to proceed on the basis that this case was on all fours with Prodduturi.

41    The Minister contended that the appellant’s request for declaratory relief was insufficient to distinguish Prodduturi because the relief was directed to preventing the future operation of s 48 of the Migration Act only in the “hypothetical event” that the appellant made a further visa application. The Minister submitted that the appellant was “prematurely seeking to have determined issues that might not ever arise, or have practical consequence” and that it was “entirely speculative” as to whether he might make a further visa application which, if otherwise valid, could be barred by s 48. The Minister acknowledged that, if and when such an application were made, it would be open to the appellant to argue to the Department that s 48 presented no bar to his application and, if this argument were not accepted, it would be open to the appellant to seek judicial review in either the High Court or the FCCA concerning the refusal to make a decision in respect of such a visa application.

42    In essence, the Minister contended that relief should not be granted in relation to hypothetical circumstances that might not occur.

43    For the following reasons, we reject the Minister’s contention. First, as noted in [17] above, in the FCCA the appellant gave oral evidence in chief to the effect that, if he succeeded in his judicial review application, he would apply for a student visa. This evidence was not undermined during cross-examination. Although senior counsel for the Minister drew this Court’s attention to some parts of the transcript below in which the appellant confirmed under cross-examination that he needed to improve his English before he could get a student visa, his confirmation of that fact is not inconsistent with an intention on his part to apply in the future for a student visa. Accordingly, the matter is not hypothetical.

44    Secondly, and in any event, it is difficult to understand why the appellant has pursued these matters both below and on appeal, unless he intends to make a further visa application and wishes to avoid the operation of s 48 of the Migration Act. We do not accept the Minister’s submission that there is some ulterior motive relating to the appellant’s desire to obtain issue estoppels in his favour independently of his ultimate objective of being granted a visa. There is no proper evidentiary basis to make any such finding.

45    The Minister also relied upon s 69 of the Migration Act in support of his contention that the legislative scheme envisaged that a delegate’s decision was preserved even where there has been a failure by the Minister to comply with requirements imposed by Subdivs AA or AB of Div 3 of Pt 2 of the Migration Act. Those requirements include the Minister’s obligation under s 47(3) not to consider a visa application that is not a valid application. To the extent that the Minister was submitting that s 46 of the Migration Act constitutes an exhaustive statement as to when an application for a visa is valid and leaves no room for relevant fraudulent conduct on the part of a migration agent or other third party to invalidate an application, that submission should be rejected. Clearer terms than those which appear in s 46 would be required to displace the operation in a public law context of fraudulent conduct as discussed in SZFDE. In any event, we doubt that the Minister’s position went so far, noting that his senior counsel acknowledged several times in closing address that s 48 is not triggered if the principles in SZFDE are met. The Minister’s fundamental contention related to the timing of a determination as to whether or not particular fraudulent conduct means that s 48 is not enlivened.

46    We do not accept the Minister’s submission that Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; 243 CLR 319 (M61) does not assist the appellant. Two Sri Lankans brought judicial review proceedings in the High Court’s original jurisdiction. They claimed that recommendations made by independent reviewers that Australia did not owe them protection obligations involved errors of law and procedural unfairness. One of the applicants sought certiorari to quash the recommendation and mandamus to direct both the Department and the independent reviewer to deal with his application for protection according to law. He also sought mandamus to compel the Minister to complete the statutory tasks under ss 46A(2) and 195A(2) of the Migration Act. Prohibition and/or an interlocutory injunction were also sought to restrain the Commonwealth from taking any steps to remove the applicant until his application was determined.

47    The other applicant also sought certiorari and mandamus. But, in addition, he sought declaratory orders that the decisions that he was not a refugee were vitiated by error.

48    The High Court considered that injunctive relief was inappropriate and unnecessary because there was no immediate threat to remove the applicants from Australia. Mandamus was also found not to be available because the Minister could not be compelled to consider or reconsider the exercise of his personal powers under ss 46A and 195A of the Migration Act. The unavailability of mandamus meant that there was no utility in granting certiorari to quash the reviewers’ recommendations. The High Court further stated that, in many cases, a conclusion that certiorari and mandamus did not lie would require the further conclusion that no declaration of right should be made (see at [101]).

49    Notwithstanding these matters, however, a bare declaratory order was made in respect of both applicants for reasons which are evident in [102] and [103] of the High Court’s reasons for judgment (footnotes omitted):

102    The power to grant declaratory relief is a power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise”. As pointed out in Ainsworth v Criminal Justice Commission, it is a form of relief that is confined by considerations which mark out the boundaries of judicial power.

103    In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a “real interest” in raising the questions to which the declaration would go. In these cases, the procedures which are said to be infirm were conducted for the purpose of informing the Minister of matters directly bearing upon the exercise of power to avoid breach by Australia of its international obligations. The statutory powers to the exercise of which the inquiries were directed are placed in the statutory and historical context earlier described. That context demonstrates the importance attached to the performance of the relevant international obligations by both the legislative and executive branches of the Government of the Commonwealth. Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers.

50    We consider that similar reasoning applies to the circumstances here and the FCCA ought to have proceeded in the exercise of its jurisdiction to determine whether the case was one where declaratory relief should have been given. Under s 16 of the Federal Circuit Court of Australia Act 1999 (Cth) the FCCA is empowered to make binding declarations of right, whether or not any consequential relief is or would be claimed.

51    The issue of the operation of s 48 of the Migration Act where it is claimed that there has been fraud by a third party on a visa applicant, which fraud has affected the decision-making process in relation to that visa application, is a matter of real interest to both the appellant and the Minister. Furthermore, the issue is one which affects not only the appellant here, but also other visa holders whose visa applications are rejected in circumstances where there is fraud on the part of a migration agent or third party and the relevant statutory processes are also stultified. There is considerable public interest in the due and lawful administration of statutory provisions in the Migration Act relating to such matters as the making of visa applications and their determination and review in circumstances where there has been fraud on the part of a third party. As the High Court observed in SZFDE at [11], these concerns, which arise in a public law context, relate to the due administration of the laws of the Commonwealth and have important constitutional underpinnings.

52    Naturally, whether or not a Court exercising judicial review determines ultimately to grant appropriate declaratory relief will depend upon a range of matters. They include whether the evidence justifies the making of relevant and necessary findings of facts relating to such matters as the validity of the visa application, whether the visa applicant has been the victim of fraud and whether that fraud has also stultified some relevant aspect of the decision-making process in relation to the consideration of the visa application. None of these matters was addressed or determined by the FCCA below because of the erroneous finding that the Court lacked jurisdiction. For completeness, we accept the Minister’s contention that, having regard to authorities such as SZFDE and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33] it will be necessary to find that the agent’s conduct is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act.

Conclusion

53    For these reasons, the appeal should be allowed and the orders of the FCCA should be set aside. The matter should be remitted to the FCCA for hearing according to law. The appellant did not press his application that the remitted hearing be conducted by a different judge of the FCCA. He was correct not to do so. The Minister should pay the appellant’s costs of the appeal. The appellant did not seek an order for costs in respect of the proceedings below. It was acknowledged, correctly in our view, that no cost orders should be made in respect of those proceedings until the outcome of the rehearing is known.

54    Orders will be made accordingly.

Associate:

Dated:    17 October 2016