FEDERAL COURT OF AUSTRALIA

Farajzadh v Minister for Immigration & Multicultural Affairs [2000] 715

Migration Act 1958 (Cth), s 476(1)(e)

Judiciary Act 1903 (Cth), ss 39B, 44, 475(1)

Nirmalan v Minister for Immigration & Multicultural Affairs, (unreported, Full Court (Beaumont, Branson and Emmett JJ) Sydney, 14 May 1998), followed

BIJAN FARAJZADH V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 159 OF 1999

R D NICHOLSON J

24 MAY 2000

PERTH

THE COURT ORDERS THAT:

1.                  The notice of objection to competency be allowed.

2.                  The application be dismissed.

3.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of the Republic of Iran.  He arrived in Australia on 7 May 1998.  On 16 September 1998 he lodged an application for a protection visa.  On 20 October 1998 a delegate of the respondent refused the grant of that visa.  On 27 October 1998 the applicant sought a review of the decision by the Refugee Review Tribunal.  On 18 December 1998 the tribunal affirmed the decision of the respondent's delegate to refuse the grant of a protection visa to the applicant.  The Tribunal did so essentially on the ground that it did not find the applicant's evidence of fear of persecution based on political opinion to be credible.  His further case that he may have some difficulty in returning to Iran was found by the Tribunal not to be a convention‑related reason.  That is a reference to the Refugees Convention.

2                     On 21 December 1998 a letter was written to the applicant by the Tribunal informing him of the Tribunal's decision and enclosing a copy of its decision and reasons.  The letter and the enclosures were in the English language.  The letter was despatched by registered post on 21 December 1998.  On the applicant's own admissions I am satisfied that the letter and its enclosures reached him by 31 December 1998.

3                     On 13 December 1999 the applicant lodged an application for review of the Tribunal's decision.  The application bears the date 10 December 1999 but was received in the registry of this Court on 13 December 1999.  The application in question relied firstly on the ground that the Tribunal's decision involved an error of law, being the incorrect interpretation of the law or an incorrect application of it.  The other main ground was that the findings of fact of the Tribunal were not rationally supported by probative evidence.  Those grounds were substantially repeated in similar form in an attached additional application also signed by the applicant.  The grounds referred to are in the first place those which appear in s 476(1)(e) of the Migration Act 1958 (Cth) ("The Act").

4                     In the second place the grounds relating to rational support are those which wholly or substantially are not grounds permitted, see s 476(2)(b) of the Act.

5                     It is apparent from examination of the application that the grounds are in a common form used from the Port Hedland detention centre.

6                     In common with many persons there, the applicant does not speak the English language, nor has he any legal representation.

7                     On 30 March 2000 the respondent filed a notice of objection to competency.  The respondent objected to the court hearing the applicant's application on the ground that it had not been lodged with the Court within twenty-eight days of the applicant being notified of the Tribunal decision.  That ground is in reference to s 478(1)(b) of the Act.  That provides that an application under s 476 must be lodged within that time limit.  Section 478(2) provides that the Federal Court:

“must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).”

8                     It will be observed firstly that this is an enactment of the Parliament of the Commonwealth of Australia.  In the Australian legal system the court must give effect to statutory enactments of a Sovereign Parliament.  Secondly, it will be observed that the section not only uses the mandatory word "must" but also in par (b) states what the Court cannot order.  It goes further and says that the Court's orders must not have the effect of allowing lodgment outside the time limit specified by Parliament. 

9                     Of this provision the Full Court in Nirmalan v Minister for Immigration & Multicultural Affairs, unreported, Full Court (Beaumont, Branson and Emmett JJ), Sydney, 14 May 1998, said:

“The terms of section 478(1)(b) of the Act are specific.  They provide that an application of the present kind must be lodged within 28 days of the applicant being notified of the decision.  Moreover, section 478(2) of the Act provides in terms that the Court must not make an order extending time.  There is now a considerable line of authority in this court which establishes that the Court has no jurisdiction to extend time, irrespective of the merits of an application for extension.”

10                  For the time limit to apply the court must be satisfied that as a question of fact the relevant application was, firstly, under ss 476 or 477 and, secondly, was not lodged within the twenty‑eight-day period.  I have already found that the application falls within s 476.  I find from the facts which I have previously set out that it is patent the application was not lodged within the period of twenty‑eight days.  On the face of it the section would apply to prevent this Court hearing the application of the applicant. 

11                  In saying that I also have regard to the terms of s 485 of the Act which provides that in spite of any other law, including s 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subs 475(2) or (3), other than the jurisdiction provided by the part of the Act in which the section appears or s 44 of the Judiciary Act 1903.  The decision of the Tribunal is a judicially‑reviewable decision - see s 475(1) of the Act.

12                  However, the applicant has lodged written submissions with the court and made oral submissions during the hearing in relation to the notice of competency.  The points he raises as a non‑legally trained person go to what he considers to be the justice of the provision being applied to prevent a hearing on the merits of his application.  The matters which he raises may be listed and identified as follows:-

1.                  He is legally unrepresented;

2.                  The notification to him of the tribunal decision and reasons was in a language he could not read or understand.

3.                  He was not told of the time limit within which he must lodge an application for review.

4.                  He was on intense medication and clinically depressed which affected his capacity to focus and concentrate on any matter.

13                  These are all significant factors in measuring the quality of justice in any legal system.  However, factors two to four are not matters for which there is any legal basis for finding that the provision enacted by Parliament in s 478 should not be applied.  It will be recalled that in s 478 it is provided in subs (2) that the Court cannot make an order even having the effect of allowing lodgment of an application outside the period of twenty‑eight days.  The factors raised by the applicant in items two to four are matters which would go to a discretion to extend time in the event that the court had such a discretion.  Section 478, however, makes patently clear and the Full Court in Nirmalan has accepted that there is no discretion in the Court because of the words chosen by Parliament.

14                  Turning to the first factor of legal representation, the applicant moves the Court for an adjournment of the hearing on the notice of competency to enable him to obtain legal representation.  This is opposed by the respondent on three grounds.  The first is that the applicant has had since the filing of the notice of competency on 30 March 2000 to seek to move the Court in such direction; the second is that no useful purpose would be served because on the facts of the applicant's case it is obligatory that s 478 of the Act apply to deny the Court jurisdiction.

15                  In support of his case on this matter the applicant adds a further factor to those previously listed although it could be seen as a further development of the fourth factor; namely, his medical condition.  He asks that regard be had to him as a human being in his condition and to the condition of his detention.  It is an unusual and unexplained feature of the applicant's case that he remained and has remained in detention in Australia long after the expiry of the period provided for in s 478 to his circumstances.  On 7 July 1999 the applicant wrote to the respondent seeking the grant of a visa on humanitarian grounds and it may be that his continued detention is explicable by reference to the awaiting of the outcome of that appeal.

16                  Extensions of time to obtain legal representation should be decided by reference to the nature of the case and the time which has elapsed since the first opportunity to seek an adjournment arose.  It is apparent that the applicant previously had legal representation, (see his written submissions to this hearing where he referred to his lawyer being on holiday until mid January 1999 at the time he received notification of the Tribunal decision).  I accept the submission made for the respondent that given the view which must be taken of the application of s 478 to this matter, no useful purpose would be served by allowing any adjournment in respect of an attempt to obtain legal representation.  I therefore refuse the adjournment application.

17                  It follows that the matters raised by the applicant taken at their highest cannot displace the effect of s 478 of the Act.  Consequently the application must be dismissed on the ground that this Court has no jurisdiction to hear it. 

Associate:

Dated:              28 May 2000