Case: NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
Outcome: applied
FM further found that in any event relief should be refused because the applicant had engaged in a scheme with an unknown person in order to mislead and deceive the Minister amounting to misconduct and the applicant should not enjoy the fruits of this scheme. Driver FM cited NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 in support of this proposition. Limitations of time in respect of filing and serving notices of appeal of decisions of the Federal Magistrates Court in the Federal Court are set out in O 52 r 15 Federal Court Rules . The rule provides: '(1) The notice of appeal shall be filed and served - (a) within 21 days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' The applicant in this case did not apply to the Court within 21 days of the judgment of Driver FM. The decision of Driver FM was handed down on 13 March 2006 and the application for an extension of time was filed in this Court on 5 April 2005, two days outside the timeframe. It follows that the applicant is required to seek the leave of this Court pursuant to O 52 r 15(2) to file and serve a notice of appeal. The first respondent, in written and oral submissions asserted that: &#8226; the court below did not err in concluding that the protection visa application was valid notwithstanding that the applicant has signed it in a false name and made false claims: citing NAWZ &#8226; the court below never had jurisdiction so its order to dismiss the application with costs was an appropriate order &#8226; alternatively if the court below did have jurisdiction, there was no error in concluding that the protection visa application was valid and as such the application should have been dismissed with costs &#8226; even if the court below had jurisdiction and the protection visa application was invalid, relief should have been refused anyway given that the applicant had knowingly participated in a deception of the minister. The submissions of the applicant and the submissions of the first respondent are somewhat divergent. The applicant has directed his submissions, including assertions in his affidavit of 5 April 2006 and his oral submissions, towards the delay in filing his notice of appeal, and addressing the decision of the Tribunal. The first respondent has focussed on the issue of the validity of the protection visa application and the validity of the decision of the Tribunal as determined by Driver FM. The case before Driver FM was determined by his Honour on the issue of the validity of the visa application and the Tribunal hearing. I have briefly recounted the reasons for this in this judgment. Driver FM explains the background in more detail in his judgment. In this case the applicant sought a show cause order in the Federal Magistrates Court pursuant to r 44.12 Federal Magistrates Court Rules 2001 which is as follows: ' Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.' Hearing the application on 27 February 2006, it appears his Honour dismissed the application insofar as it attacked the merits of the Tribunal decision. As clear from r 44.12(2), that decision was interlocutory. His Honour went on however to grant the application in relation to the validity of the protection visa application and the Tribunal decision, which the learned Federal Magistrate heard on 13 March 2006. The applicant could have sought leave to appeal the decision of Driver FM of 27 February 2006 in relation to the dismissal of the show cause application relevant to the merits of the Tribunal decision. He did not do so, and is not doing so now. Instead he lodged an amended application in the Federal Magistrates Court as already discussed. Unfortunately, from the grounds which have been put before me in this matter, it is possible that the applicant did not understand that his Honour was dismissing that part of his application. To that extent, submissions of the applicant in relation to the merits of the Tribunal decision, and why he was unsuccessful before the Tribunal, are not relevant in this case. I note, for the benefit of the applicant, that this Court has a limited jurisdiction in reviewing decisions of the Tribunal, and in fact has no jurisdiction to review findings of fact by the Tribunal, nor investigate the merits of the applicant's claim, except to the extent that errors of law may be demonstrated. I also note however although this does not form part of my decision that the Tribunal appeared to give careful consideration to the claims of the applicant, including giving him the benefit of the doubt in respect of a number of his claims, but nonetheless affirmed the decision not to grant a protection visa for reasons stated in their Decision Record. In relation to the submissions of the respondent, the decision of the Full Court of the Federal Court in NAWZ is applicable. Although made in the context of s 98 of the Act, I note in particular comments of their Honours at par 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.' In this case, the applicant had completed an application for a protection visa under a false name, and signed it. As Driver FM pointed out, that fact alone does not render the application invalid, it was the applicant's application regardless of what name he chose to use on it, and it was a complete application regardless of whether the claims and other details in it were true or false. Further, in my view it would be contrary to public policy to allow the applicant to claim that the process of lodgement of a protection visa was flawed because he had lodged the first application under a false name, for whatever reason (cf NAWZ at par 14). Accordingly on this reasoning both the decision of the delegate of the Minister and the Tribunal were valid.