NAWZ v MIMIA

[2005] HCATrans 853

[2005] HCATrans 853

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S319 of 2005

B e t w e e n -

NAWZ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 11.38 AM

Copyright in the High Court of Australia

MR B.M. ZIPSER:   May it please the Court, I appear for the applicant.  (instructed by Stephen Blanks & Associates)

MR S.B. LLOYD:   I appear in this matter with MR R.M. FOREMAN.  (instructed by Sparke Helmore)

GUMMOW J:   Yes, Mr Zipser.

MR ZIPSER:   Your Honours, the issues in this matter are discrete.  Detailed written submissions have been filed on behalf of the applicant and I only have a few brief comments to make in oral submissions on three issues.

The first issue before the Court is whether an application which has been signed, but not signed by the applicant personally, is a valid application.  The crux of the applicant’s case is as follows, that regulation 2.07(3) of the Migration Regulations provides that:

An applicant must complete an approved form in accordance with any directions on it.

Form 866, which is the approved form for a protection visa, the application requires and directs the applicant to sign the application in two places.  It has been recognised that strict compliance with forms, including form 866, is not required and substantial compliance is sufficient and that is recognised in part because of section 25C of the Acts Interpretation Act.

It also would not be contested principle that what constitutes substantial compliance in a particular case and in the present case depends on two matters.  First, it depends upon the purpose of the form and those words are taken from the Full Court of the Federal Court’s decision in Bal v The Minister and secondly, what constitutes substantial compliance in any case and in the present case will depend upon the statutory scheme and the purpose of the legislation in accordance with cases like Project Blue Sky.

What is important in the legislative structure in the present case is section 48A of the Migration Act which provides that, or has the affect that, subject to a discretion exercisable by the Minister in limited circumstances, an applicant who is in the migration zone can lodge only one application for a protection visa while remaining in the migration zone.  The legislative scheme, in our submission, indicates the importance of any procedures or steps to ensure that the application lodged by an applicant is completed by or on behalf of the applicant and contains his or her claims.  One such procedure or step is that the application form be signed by the applicant personally in accordance with the directions ‑ ‑ ‑

GUMMOW J:   What is the particular passage in the Federal Court Full Court judgment that you say is in error?

MR ZIPSER:   In relation to this issue of invalidity the relevant finding by the Full Court is in paragraphs 16 and 17 and there are two points that I would make.  The first is that we would say that in light of section 48A the importance of the point that an applicant only has one opportunity to lodge a protection visa application, it is important that the application is signed by the applicant personally and the Full Court in saying that that was not necessary fell into error.

The Full Court noted section 98 of the Migration Act but we would say that, as the Full Court noted, while section 98 of the Migration Act clearly makes the applicant the author of any information and answers given in a protection visa application even if he or she did not write those informations or answers personally it is unclear whether section 98 applies to signatures of applicants.

The respondent in its submissions on this point noted the administrative inconvenience if the applicant’s submission was correct.  The respondent noted that a difficulty with the applicant’s position is that it would be impossible for a delegate to determine whether an application for protection visa has been signed by an applicant personally or alternatively by someone else.

We would say in response first, the fact that justice may have inconvenient consequences should not deter this Court from accepting the applicant’s position and second, the inconvenience of the applicant’s position, if this Court accepts it can be cured by the Minister or the Executive amending form 866s so that a witness, for example a Justice of the Peace, has to set out their name and declare or certify that they have witnessed the applicant sign the form personally.

GUMMOW J:   What is your response to paragraph 31 of the reply on page 58:

It is entirely consistent with the scheme of the Act that a person who knowingly allows another to complete a visa application form for that person is responsible for the content of that form ‑ ‑ ‑

MR ZIPSER:   In my submissions today I am focusing principally on the question of whether a form which was not signed by the applicant personally is a valid application.  Paragraph 31 of the respondent’s submissions at page 58 of the application book refers to section 98.  Again, it is clear that section 98 refers to information in and answers given by applicants in visa applications, but as the Full Court of the Federal Court recognised, it is unclear whether section 98 applies to a signature signed by someone at the end of a form.  Those are the only points I wanted to make in relation to the question of whether a form signed by a person other than the applicant is a valid application. 

The second of the three issues which arises is whether the Full Court of the Federal Court erred in the exercise of its discretion when it made a finding that even if there was a technical error in the decisions below it would refuse to grant relief.  In the applicant’s written submissions at paragraph 43 there are a number of matters which are set out which, it is submitted, the Full Court did not take into account.

There are two additional matters which I would want to add orally.  The first is that Justice Wilcox found that the agent Mr Dehsabzi was probably the instigator and author of the false application made in 2001, although it was made with the applicant’s knowledge and consent.  My submission is that that finding by Justice Wilcox supports a position or a submission that Mr Dehsabzi had a greater responsibility for the false application than the applicant and I would submit that the Full Court’s failure to take that matter into account involved an error in the exercise of its discretion.

The second factor which I would say the Full Court did not take into account which it should have in considering whether the applicant was acting in bad faith was that the applicant told the Refugee Review Tribunal in July 2003 that he made a fresh application for a protection visa in January 2003, that being his second application which contained true information about – or, we would submit, correct information about his background.  He made that correct application without any knowledge that his first bogus application was rejected in June or July 2002 but there was evidence before Justice Wilcox that he did not know that it had been rejected.

We would say that the fact that the applicant lodged the fresh application in his own name and we would submit with correct background information about him reduces the level of any bad faith that could be attributed to him and we would say that the Full Court of the Federal Court erred in not taking that matter into account.

The third and final issue which arises in I think a very small way, is that this matter involved an application for an extension of time.  Although it is not entirely clear from the application book, because there are a couple of errors in dates, my understanding is that the applicant originally lodged an application within time which was then deemed to have been abandoned

because the document was not filed by a particular date and the solicitors ‑ ‑ ‑

GUMMOW J:   What is the extent of the ultimate delay?

MR ZIPSER:   I think in one sense it is one day in that the solicitors in relation to the original special leave application which was filed on the same day as the Full Federal Court’s decision, it was deemed abandoned on Monday, 20 June 2005 because the solicitors did not file a particular document by Friday, 17 June and the following day, 21 June the solicitors took steps to correct that error, so it would be a small oversight.  Those are my submissions, your Honour.

GUMMOW J:   Yes, Mr Lloyd.

MR LLOYD:   In relation to the first point, the first point being a question of whether or not an application form needs a signature, in my submission that is not a special leave point because it is not a dispute that only substantial compliance is required.  The case just turns on question of fact, whether or not in this case there was substantial compliance.

Moreover, we would submit that it is clearly arguable that there was substantial compliance in circumstances where the applicant has knowingly instructed a person to put in a false claim.  In the end, the applicant’s case is, as I understand it, he would have lost if he had have personally put on a false signature but because somebody else personally put on the false signature it is not a valid application. 

In my submission, the question of substantial compliance goes to the purpose - whether or not the compliance was substantial goes to the purpose of the form and the legislation.  In this context the primary purpose is section 47 of the Act which is the Minister is bound to consider a valid application and bound not to consider an invalid one.  In that context, what is relevant is whether or not on the face of the form, a delegate of the Minister is able to tell whether or not it is valid and the question of whether or not the content of it is true and whether or not the signature is actually physically done by the applicant or not is not something which is required for substantial compliance.

There is also to support that proposition – of course there will be some people who will not physically even be able to sign and in those circumstances that would suggest that a signature is not mandatory to validity.  There is also section 98 of the Migration Act which –

GUMMOW J:   Yes, Mr Lloyd.  Section 98.

MR LLOYD:   Section 98 of the Migration Act which provides that:

A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

There is a positive aspect of that section that, in effect, the action of Mr Dehsabzi, in this case, is taken to be the action of the applicant but also there is a negative aspect that the existence of the provision assumes that an application form could be filled in otherwise than by the person, which again shows that these things cannot be seen to go to substantial compliance.  In relation to the question of the discretion ‑ ‑ ‑

GUMMOW J:   I do not think we need to hear you any further, Mr Lloyd.  Yes, Mr Zipser.

MR ZIPSER:   Nothing in reply.

GUMMOW J:   There are no prospects in an appeal in disturbing the decision of the Full Court on the issue of discretion.  Accordingly, the other questions would not arise.  The applicant has any leave that is necessary to overcome time limitations but the application for special leave is refused with costs.

AT 11.55 AM THE MATTER WAS CONCLUDED