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.