NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant seeks to raise a question that was not in issue before the primary judge, though it obviously has been inspired by his Honour's findings. That question is whether a falsely made application for a protection visa under the Migration Act 1958 (Cth) is properly to be characterised as a 'valid application' for the purposes of the Act, notwithstanding that the application was not personally filed in and signed by the false applicant but was filled in and signed by another person on the applicant's behalf and with his knowledge and consent. We are prepared to give leave to raise this ground. 2 The issue before the primary judge was, simply, whether such a false application had in fact knowingly been made on the appellant's behalf. The appellant denied that such had occurred. He was disbelieved. Unsurprisingly, given the case advanced by the appellant, the primary judge was not asked to, and did not, consider whether the application so made was a valid application. 3 The context in which this question arises is this. Having made a false - and in the event unsuccessful - application for a protection visa under a pseudonym and as an Afghani national, the appellant later made an application for a protection visa in his own name and as a citizen of Pakistan. Both applications were made while the appellant was in Australia. A delegate of the Minister refused to consider the second application because, as an unsuccessful visa applicant 'in the migration zone', the appellant was precluded from making 'a further application for a protection visa while in the migration zone': Migration Act 1958 (Cth), s 48A. 4 The appellant has not questioned the primary judge's fact finding. However, he does not seek in any way to ascribe the alleged invalidity of the false application to the deception he and his agent sought to practice on the Minister. Rather his contention is that, as he did not sign his application personally nor fill it in, he did not satisfy the allegedly strict requirements of the Act and Regulations. 5 Regulation 2.07 of the Migration Regulations 1994, as it stood at the relevant time, provided: '(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; … (3) An applicant must complete an approved form in accordance with any directions on it.' 6 The approved form for a protection visa at the relevant time required a person making a refugee claim on his or her own account to sign an 'Applicant's declaration' at two different places in the form. The appellant's claim now hangs, primarily, on these two 'directions', although it is contended as well that a fraudulent application is itself an invalid application. 7 The actual relief sought by the appellant in the present proceedings is for declaratory and mandatory orders the burden of which is (i) to establish that only the second application has been made by the appellant; and (ii) to compel the Minister to have that application determined according to law. The grant of this relief is discretionary and it is proper to note the context in which a favourable exercise of discretion is being sought assuming that there is technical merit in the appellant's appeal. We emphasise technical merit because it is clear that the appellant was not only a responsible party in the making of the false application, he was also the intended beneficiary of it if it proved successful. 8 The appellant arrived in Australia on 20 February 2001. He made the false application on 28 May 2001 through the agency of a Mr Dehsabzi. Both the appellant and Mr Dehsabzi thought that using an Afghan identity and pseudonym would improve his chances of success. The application was refused by a delegate of the Minister on 12 June 2002. 9 On 30 January 2003 he lodged the second application. He was interviewed by an official from the respondent Minister's Department on 10 June 2003 and was confronted with his having made an earlier application in the name of Waisi. He denied lodging such an application. He persevered in that denial both in correspondence with the Refugee Review Tribunal (which he sought, unsuccessfully, to have reviewed the delegate's decision not to consider his second application) and at the hearing before the primary judge. He now accepts his Honour's contrary finding on this matter, but nonetheless seeks in this appeal to take advantage of it. 10 The appellant, in our view, has so conducted himself both in relation to the Minister and to the Court as to disentitle himself to the award of discretionary relief even if it be assumed that his fresh ground of appeal has technical merit. The respondent Minister has made submissions to this effect. Despite the appellant's contention to the contrary we do not consider that it was necessary for a Notice of Contention to be filed for this purpose. 11 It is well accepted that 'relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary': Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [90]. 12 As was said of the writ of mandamus (which is the principal relief sought in this matter) in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at 400: 'the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.' Emphasis added. See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004). 13 The appellant has twice attempted to practise deception upon the Minister, first by making a bogus claim for refugee status and then, by denying that he was personally implicated in the making of that claim. His same lack of candour infected his approach to proceedings in this Court - until he was disbelieved. He has demonstrated no particular solicitude to advance whatever claim he may have in his own right to seek a protection visa. His second claim was made almost two years after he arrived in Australia and seven months after the false application had been refused. 14 The appellant has sought consistently to avoid the consequences of his own actions. This late-raised ground of appeal is another instance of this. We would deny him the relief sought even if he could make out the ground relied upon. It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant. 15 We should add that we do not consider that the appellant's failure to fill in or sign the false application has the effect for which he contends. 16 The appellant is fixed with responsibility for the actual content of the false application filled in on his behalf: see Migration Act 1958 (Cth), s 98. The application filed on his behalf was his application albeit it lacked what in the circumstances would have been two false declarations signed by him, though they were signed on his behalf by his confederate. We express no view on the question whether s 98 extends to deem the appellant to be the signatory of the application, albeit under a pseudonym. Notwithstanding that the application was substantially false in its contents and that it carried two false declarations signed by a person who was in reality the appellant's alter ego, the application itself substantially complied with what was required of an application by the Migration Regulations. 17 We do not consider that the requirement in Reg 2.07 that the approved form must be completed 'in accordance with any directions on it' necessitates that any departure from those directions spells invalidity for an application. It is unlikely to have been the purpose of the legislation: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391; to require the automatic invalidity of a visa application that an applicant has caused another to complete: cf s 98; but which is unsigned, for example, because of the paralysis of the applicant or, for that matter, of the oversight of the applicant or of his or her agent: cf Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 at [32]. 18 We do not consider that the irregular manner of filling in and signing of the false application resulted in the invalidity of the application. It was a false application but it was, in formal terms, a valid application. 19 The appeal should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Mansfield and Stone.