FEDERAL COURT OF AUSTRALIA

Salehi v Minister for Immigration & Multicultural Affairs

[2001] FCA 995

MIGRATION - Application to review decision of Refugee Review Tribunal - application lodged outside 28 day period - notice of objection to competency - applicant  in immigration detention - applicant had difficulty obtaining form for an application for review from respondent’s officers despite requests - applicant gave completed application to respondent’s officers to lodge with Court by facsimile within 28 day period prescribed under s 478(1)(b) Migration Act 1958 (Cth) - application lodged with Court after 28 day period had elapsed - delay due to administrative error - whether s 478 creates a jurisdictional bar - whether s 478(2) should be construed as subject to certain exception.

Migration Act 1958 (Cth)

Re Refugee Review Tribunal;  ex parte HB [2001] HCA 34 applied

Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 applied

Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285 applied

Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 562 applied

Quevedo-Navarro v Minister for Immigration and Multicultural Affairs [1999] FCA 83 applied

Pannasara v Minister for Immigration and Multicultural Affairs [2000] FCA 213 applied

H v Minister for Immigration and Multicultural Affairs [2001] FCA 43 applied

Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550 referred to

Ayub v Minister for Immigration and Multicultural Affairs [2000] FCA 1844 considered

Al Adwan v Minister for Immigration and Multicultural Affairs [2001] FCA 706 referred to

Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535 applied

Gamage v Minister for Immigration and Multicultural Affairs [2000] FCA 1223 referred to

Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186 referred to

Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 referred to

Radhi v Minister for Immigration and Multicultural Affairs [2000] FCA 777 referred to

Duwai v Minister for Immigration and Multicultural Affairs [1999] FCA 1309 applied

Kumar v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 680 referred to

Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 referred to

Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 applied

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 considered

Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 applied

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 applied

Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 applied

Guendouz v Minister for Immigration and Multicultural Affairs [2000] FCA 766 considered

Bariah v Minister for Immigration and Multicultural Affairs [2000] 1253 considered

Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 applied

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 referred to

MacAlister v The Queen (1990) 169 CLR 324 referred to

Saraswati v The Queen (1991) 172 CLR 1 considered

Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27 considered

Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 referred to

Al Adwan v Minister for Immigration and Multicultural Affairs [2001] FCA 706 applied

Barzideh v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 337 considered

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 considered

ALI SALEHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

S138 OF 2000

MANSFIELD J

ADELAIDE (HEARD IN PORT HEDLAND)

1 AUGUST 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant, Ali Salehi, be granted leave to appeal.

3.         The time within which Ali Salehi may appeal be extended to 14 September 2001.

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

REASONS FOR JUDGMENT

introduction

1                     This matter is one of seventeen partly-related applications to the Court made under s 476 of the Migration Act 1958 (Cth) (“the Act”) lodged on 28 or 29 December 2001 by applicants seeking a protection visa under the Act.  Each of the applicants arrived in Australia by boat, and is identified by the respondent on occasions by a number and by the first three letters of the vessel in which he arrived.  Thus, the applicant is sometimes identified as RAP065. 

2                     Each of the seventeen applicants, at the time of the application to the Court, was held in the Woomera Immigration Reception and Processing Centre (“the Woomera Centre”), a centre established by the respondent for the purposes of holding unlawful non-citizens (as defined in s 14 of the Act) in immigration detention in accordance with s 189 and s 190 of the Act.  The names of the applicants, and the date their applications were lodged, appears as a schedule to these reasons (Schedule A).  By the time of the first directions hearings, the various applicants had been dispersed to other immigration detention centres around Australia.  None remained at Woomera.  The directions hearings were conducted by video, with the assistance of interpreters in a range of languages.

3                     Each of the applications is said to have been made outside the twenty-eight day period allowed by s 478(1)(b) of the Act after each of the applicants was notified of the decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent refusing to grant to the particular applicant a protection visa.  In each matter, the respondent has objected to the competency of the application to the Court for that reason.  The respondent has sought that the notice of objection to competency be dealt with before any hearing on the merits of any of the applications.

4                     Each applicant at the first directions hearing indicated that, in some way, the cause of his belated application was the conduct of an officer of the respondent.  The respondent’s contention in each matter is that the Court must dismiss the applications as incompetent, as s 478(2) gives no power to the Court to extend the time limit irrespective of the reasons for the delay.  The legislature is said to have intended that, even if the respondent through his officers was the cause of an applicant in immigration detention not making an application to the Court within time, that application must be dismissed.  So stated, it is a surprising legislative intention, if that proposition be correct.

5                     None of the applicants spoke English.  It appeared at the first directions hearings that none of the applicants had fully understood, or to that time had had translated to them, the notice of objection to competency or the supporting affidavits of the respondent.  None has had the benefit of legal advice.  Some are illiterate.  To varying degrees, the applicants have attempted to respond in writing to that material after the respondent arranged for it to be translated to them.  Some of their responses were not in English, and the responses themselves required to be translated. 

6                     In Re Refugee Review Tribunal;  ex parte HB [2001] HCA 34, Kirby J said at [13] of circumstances such as those of the present applicants :

“The applicant does not have counsel or a solicitor or any other advocate or representative.  He has for a long time been detained in immigration detention.  He is unable to earn funds to pay for a lawyer of his choice.  He does not speak the English language.  He claims to be a refugee.  In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument.  The judicial power of the Commonwealth does not oblige those who exercise it to engage in a charade of justice.  On the other hand, there are limits to what judges can do.  I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an indigent unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced.”

Those remarks are equally applicable to the present applicants.

7                     It is of course necessary to address each case individually.  I also consider it appropriate to make findings of fact about why a particular application was out of time, as those findings might be relevant to the proper application of s 478 of the Act, notwithstanding the contention of the respondent.  Accordingly, in each matter which was continuing (seven of the applicants have elected not to pursue their applications and to be returned to their country of nationality), the Court first took evidence by video from each applicant as to the particular circumstances in which that applicant claimed that his application was out of time.  By that process, the respondent was able to be informed of the allegations made as to the causes of the delay in the making of each separate application, and the identity of the persons alleged to have been involved in those causes.  It emerged from that evidence that there were applications in which the allegations substantially overlapped.

8                     Particular applicants also, in the course of evidence, identified other persons in immigration detention who could give evidence in support of their explanation as to why their applications were out of time.  Some of these other persons were persons in immigration detention who were about to be returned to their countries of nationality.  In three instances the Court arranged for their evidence to be given by video before their departure.

9                     The next step in each hearing was the cross-examination of the various applicants to test their evidence, and the provision of the opportunity to the respondent to adduce evidence in relation to the various allegations.  To ensure fairness to all parties, that process took place at hearings at which the continuing applicants were present in person, as well as the witnesses presented by the respondent.  The further affidavits filed on behalf of the respondent were each translated to them.

10                  As noted, the circumstances in which the various applicants claim that their applications came to be out of time had in some respects substantial commonality.  The witnesses of the respondent also largely referred to their dealings with those applicants as a group, as well as dealing with individual circumstances peculiar to each matter.  I directed that the evidence in several applications where there was a considerable overlap of evidence or potential evidence be heard together.  The evidence in each of those separate applications became evidence in all of them.  That course of action ensured the fair and efficient disposition of the various matters.  The orders which I made included that this matter concerning the applicant (“Mr Salehi”) be heard together with the applications of Seyed Mobarak Ali Heidary Sadat (“Mr Sadat”), Zarpadeshah Naseri (“Mr Naseri”), Mohammad Farooq Sahak (“Mr Sahak”) and Ahmad Karimi (“Mr Karimi”).  The applications concerning Vahid Hassanvand (“Mr Hassanvand”), Amir Jelodare Mamaghani (“Mr Mamaghani”), Mohammad Akhtarani (“Mr Akhtarani”), Hasan Khalil Isa (“Mr Isa”) and Abbas Adel Bahri (“Mr Bahri”) were also heard together.  In relation to that later group of applicants, the evidence of Abbas Moayed (“Mr Moayed”), Ali Zyad (“Mr Zyad”) and Tofiq Sakhipour (“Mr Sakhipour”) was also received.  I also ordered that the evidence already in each of those two separate blocks of matters taken prior to those orders be treated as evidence in all of those matters in each block.

findings:  general

11                  There are some matters of fact which are common to all applicants.  The Acting Deputy Business Manager of the Woomera Centre, Sandra Mary Triplett (“Ms Triplett”) was the principal officer responsible for dealings with the applicants at material times.  The Infrastructure Manager at the Woomera Centre, John Edward Tonkin also gave evidence by affidavit.  His evidence was confirmatory of the evidence of the procedures adopted to notify residents of the Woomera Centre of decisions of the Tribunal.  There is no issue in any of the applications about the date of notification of the Tribunal’s decision, or (with one exception) that the relevant applicant was then apprised of the right to seek judicial review of the Tribunal’s decision, and of the twenty-eight day period specified by s 478(1)(b) to do so.  I do not need to refer to his evidence further.

12                  Mehrdad Khoshab (“Mr Khoshab”) is an accredited Farsi interpreter.  He was stationed at the Woomera Centre at material times, except for a period of leave between 3 and 20 November 2000 and then from the evening of 20 November 2000 until 29 November 2000 when his services were required elsewhere.  He was the interpreter principally available to the applicants.  He completed each of their applications and supporting affidavits to the Court, and arranged for them to be signed, with the exception of that concerning Mr Isa.  The limited information which is contained in the various applications and affidavits, with one qualification, was provided by the respective applicants from his discussions with them.  He then, promptly in each instance after each application and affidavit was completed, gave those documents to Ms Triplett to send by facsimile to the Court, or if she were unavailable, he placed them in a green folder for her attention in accordance with an arraignment with her.  She, in turn, had instructed her officers to promptly send those documents to the Court.  In a number of instances, in circumstances which are unclear, the application and affidavit were not sent promptly.  I refer to those instances when addressing the individual circumstances of each applicant.  I accept Mr Khoshab’s evidence that any delay, once such documents were completed, was not his fault.  I find that, in those instances, there was some oversight on the part of Ms Triplett or her staff which led to the delay, or some failure to remit those documents in a timely manner.  Several of the applicants suggested that those delays were part of a concerted and deliberate campaign by Ms Triplett or her staff to cause their review applications to fall out of time, but I do not find that claim to be made out.

13                  In the case of Mr Isa, the interpreter who assisted him was Frossine Hallak (“Ms Hallak”).  She gave evidence.  In all respects it coincided with the evidence of Mr Isa himself.  I have dealt with his individual circumstances in my reasons for decision dealing with his claim.

14                  In the course of the evidence, reference was also made to Tony Hamilton-Smith, the Business Manager at the Woomera Centre.  He did not give evidence.  It did not appear to me that his role was of particular significance in relation to the present issues.  I also note that Reza Mortazav (“Mr Mortazav”) featured in the narrative of events.  He also is a Farsi interpreter and translator who worked at the Woomera Centre at material times.  In particular, he was a point of contact for several of the applicants during November 2000 when Mr Khoshab was absent from the Centre.  He was not called by the respondent to give evidence.

15                  Apart from the period of Mr Khoshab’s absence from the Woomera Centre in November 2000, there are two other events around which the findings can be made.  There was a hunger strike of some forty residents of the Woomera Centre, in late November 2000.  It lasted for a number of days.  It had ceased by about 29 November 2000.  Its participants included Mr Hassanvand, and to a lesser degree Mr Akhtarani.  Evidence about the hunger strike was given only in the course of the second block of hearings, rather than in the block of hearings of which this matter is one.  It has not played a part in my consideration of this or the other four matters in this block, but it seems to me to be sensible to note the event at this point.  The other event occurred on 3 or 4 December 2000.  A resident, Farid Summeri (“Mr Summeri”) threatened to commit suicide for reasons related to a proposed application to the Court for review of a Tribunal decision.  The precise reason for his threat is contentious.  He did not give evidence.  As a result of his threat, Ms Triplett spoke to him.  She subsequently, at his request and on 4 December 2000, obtained from the Court copies of the form of application and affidavit form for use in applications for judicial review of Tribunal decisions.  There were no such forms available to residents of the Woomera Centre before that date.

16                  The practice of Ms Triplett when notifying residents at the Woomera Centre of the outcome of Tribunal decisions included advising them of the option of accepting the decision and electing to leave Australia, and of an “appeal” to the Court.  I accept her evidence which accords with that of the majority of the applicants, that she also told them that any “appeal” had to be instituted within twenty-eight days.  She also provided those persons with a pro forma letter which, she said, was to be returned within seven days if the particular visa applicant wished to “appeal”.  To that time, the applicants had had the benefit of assistance of a lawyer who was a migration agent.  The pro forma letter was to be addressed to the relevant lawyer, containing a reference to the Tribunal decision and the request to contact the particular visa applicant.  Ms Triplett or her officers would then send that letter, duly completed, to the lawyer concerned.

17                  I have some reservations about the reliability of Ms Triplett’s evidence.  It has three significant incongruities.  As is understandable in the circumstances, the applicants did not vigorously cross-examine her on those matters so I am not prepared to find that she was, as they suggested, consciously untruthful.  I also reject their contention that she, and officers under her direction, deliberately set out to cause their review applications to be out of time.  In my view, the whole of the evidence indicates that the process of attending to the requests of the applicants in relation to their proposed judicial review applications was not recognised as meriting priority.  Indeed, with the available resources, there may well have been other very significant priorities.  The picture clearly emerges that residents of the Woomera Centre in November and December 2000 had considerable difficulty in getting responses to their requests for information generally, except perhaps in clearly urgent circumstances.  Whether the threatened suicide of Mr Summeri was due to concerns that his lawyers had not responded to him, or to delay by the Tribunal in making its decisions, or to concerns that his requests for forms to apply to the Court were not being met when the time limit was expiring, that event clearly indicates a frustration on the part of residents directed at the respondent’s officers for not providing those residents with responses to their questions.  In respect of the second block of cases, the hunger strike invites the same comments.  Several of the applicants described difficulties in being able to get access to officers of the respondent, in particular to Ms Triplett.

18                  The particular disharmonies in Ms Triplett’s evidence are :

(1)        The agreed standard procedure from June 2000 when residents were notified of Tribunal decisions included :

“If applicants state during the appointments that they wish to appeal to the Full Federal Court, I give an application form to them at the meeting, and tell them again that they should get it back to us within seven days so that we can fax the form off to the Federal Court and then to DIMA’s solicitors.  We have the Federal Court appeal forms in the DIMA office at Woomera for distribution.  Whenever applicants ask us for the forms, we hand them out.  I tell them that at appointments that if they wish to appeal, then they should let us know, and if they let us know, I can then get the forms to them straightaway.

If applicants say that they would like to think about appealing, I advise them to get back to me within seven days and I will give them the appropriate documentation. ...”

(her affidavit sworn 22 March 2001)

whereas, in her affidavit sworn 1 June 2001, she said that the first time she was asked by a resident to provide a form to apply to the Court was on 3 or 4 December 2000 when Mr Summeri requested one, and that there were no available forms up to that time;  she then procured them from the Court.

(2)        In her affidavit sworn 22 March 2001, Ms Triplett said that the background to the seventeen applications referred to above was that two people lodged their own applications on about 4 December 2000, and so the applicants through Mr Khoshab sought the necessary forms, but she did not then refer to the circumstances in which Ms Summeri was provided with the necessary forms.

(3)        In her affidavit sworn 22 March 2001, Ms Triplett explains why the applications were lodged with the Court on 28 and 29 December 2000:  it was because the applicants wanted their applications dealt with as “job lot” and so they were sent in job lots to the Court, but her oral evidence made no reference to that arrangement and asserted that each application was sent as soon as it was received from Mr Khoshab, except that there were unexplained delays through some administrative errors.

19                  Those matters, together with my general impression of Ms Triplett’s evidence, make me cautious about accepting her evidence where it is contradicted by that of the applicants.  In general, there is little direct conflict.  It is more, I think, a situation where Ms Triplett’s understanding of her accessibility and that of her officers to the applicants does not reflect the level of accessibility which the applicants sought and were given.  It may be that that was so because of other obligations and commitments of Ms Triplett and her officers in the discharge of their duties and in the performance of their functions.  I am not in a position to decide that.  In relation to review applications, her efforts may have been directed to assisting the applicants in obtaining legal assistance, without realising (as appears to have been the case) that such legal assistance was not likely to be available so that she did not understand until after the incident involving Mr Summeri that the applicants wanted to pursue their review rights directly, notwithstanding her standard presentation at notification interviews.

20                  Certainly, there were limited interpreting services available at the Woomera Centre.  Mr Khoshab described clearly that much of his day was taken up with regular commitments, such as interpreting at the medical centre and at notification interviews.  He agreed that he was frequently accosted by residents seeking assistance and was too busy to provide that assistance at the time.  He, and other interpreters, often worked out of normal hours to help residents.  He agreed that, as several of the applicants said, he often counselled residents to “be patient”.  It is consistent with his evidence that several of the applicants who worked in the kitchen invoked his aid on a regular basis as he passed through.  It is also consistent with his evidence that, as several of the applicants described, he was paged by them to come to the gate of the compound where they were detained to seek his assistance on a number of occasions.  In a practical sense, apart from the process of securing formal interviews with Ms Triplett or Mr Hamilton-Smith, that was the only means by which the applicants could make requests of Ms Triplett and her officers.

21                  There was in place a procedure whereby a resident could lodge a form requesting an interview with Ms Triplett or one of her officers.  The form would have to identify the purpose of the interview.  If necessary, it was translated.  Ms Triplett explained that the interview requests were then prioritised for attention.  Her evidence did not deal with delays which were sometimes experienced by residents in securing interviews when the requests were prioritised.  It is not inconsistent with suggestions from certain of the applicants that there were often long delays in securing interviews, perhaps also evidenced by the incident involving Mr Summeri.  Ms Triplett described how he had painted on his shirt words like “DIMA is killing me or I will kill myself”, indicative of some frustration in having his concerns addressed by the respondent’s officers, whether those concerns related to delays on the part of his lawyers or on the part of the respondent’s officers.

22                  A contentious factual issue is the time at which any of the applicants first sought from the respondent’s officers the forms to enable them to apply to the Board to review a decision of the Tribunal.  As noted, Ms Triplett says that that did not occur before the incident involving Mr Summeri.  Ms Triplett, when addressing that incident, said that Mr Summeri would have been told when notified of the Tribunal decision that he could ask for the forms to do so.  It was one of her functions to provide them if requested.  It is, in that circumstance, hard to understand why the situation was reached that that incident occurred, except for an inability to have such a request conveyed to Ms Triplett or to be acted upon.  Each of Mr Sadat, Mr Sahak and Mr Karimi, gave evidence of having made a written request for the necessary forms within a few days of their respective notification.  Those requests were in Farsi or Dari, and according to the system in place they would then have been translated and responded to.  Clearly that did not occur.  In my view, those requests were made.  For some reason the system did not get followed.  I accept their evidence on that matter, as it is in accordance with the notification which they were given when informed of the Tribunal’s decision, and both Mr Salehi and Mr Karimi gave cogent evidence of having enlisted the help of another person to write those requests because each is unable to write.  It is also consistent with the general evidence of each of the applicants as to the persistent attempts to secure the necessary forms through Mr Khoshab thereafter.

23                  It may well be that, for some reason, those requests did not come to Ms Triplett’s attention until the incident involving Mr Summeri, but if so I do not consider that that was because the requests were not made.  I also have formed the view that, despite the evidence of Mr Khoshab that no such requests were made of him before 4 December 2000, the applicants’ evidence on that issue should be preferred.  I do not think he was trying to mislead me on the matter.  But the concern of some of the applicants about the passage of time and the need to make their applications clearly existed during November 2000.  When he returned from leave on 20 November 2000, he was told by Mr Mortazav that a number of residents wanted his assistance in relation to their proposed Federal Court applications, and on that day he briefly spoke to Mr Akhtarani, Mr Mamaghani and Mr Hassanvand on the topic.  He then had to leave the Woomera Centre at short notice.  On his return, he was again approached by them.  At his request, he was given a list of persons who wanted his help.  I find that he was given that list before the incident involving Mr Summeri, because Mr Summeri’s name appears on the list.  Mr Khoshab has noted on that list that Mr Summeri’s application is “with Sandi”, that is Ms Triplett.  At that time, he procured from Ms Triplett a number of copies of the necessary forms for residents at the Woomera Centre.  Whilst his other commitments may have resulted in him not previously appreciating that the residents wanted the necessary forms, in my view that list is more likely a culmination of such requests over time to him and to Mr Mortazav.  Beyond that general finding, it is necessary to address the individual circumstances of each applicant.

24                  Mr Khoshab was given access by Ms Triplett to a particular room at the Woomera Centre from 6 December 2000 to interview the applicants in relation to the preparation of applications for judicial review of the various decisions of the Tribunal.  I accept his evidence that he was too busy to provide that assistance to all the applicants at that time.  In the cases of Mr Salehi and Mr Sadat, the applications were not completed until 27 December 2000.  In the case of Mr Karimi, Mr Sahak, Mr Naseri they were completed on 13, 14 and 15 December 2000 respectively and were provided to Ms Triplett or placed in her green folder either that day or the following day.  It was some failure on the part of Ms Triplett, or of her officers, that those three applications were not lodged with the Court within a day of their completion.

25                  Each of the applications or supporting affidavits which is out of time contains some form of request for an extension of time because the delay was due some difficulty in getting a response to a request for legal aid.  Whilst several of the applicants did seek legal aid for a judicial review application, I consider that that part of the documents was so expressed at the instigation of Mr Khoshab (in the case of Mr Isa, Mr Hallak wrote a similar entry after speaking to Mr Khoshab).  I also find that Mr Khoshab, in early December 2000, when he realised that a number of the applicants were out of time, spoke to Ms Triplett about that.  She did not know whether an extension of time was possible, and told him that it was up to the Court to make a decision if an application was lodged late.  It was her suggestion that the applications be made with a request for an extension of time, and the reasons for the delay.  It was Mr Khoshab’s understanding, albeit as I have found an erroneous or incomplete one, that the reason for the delay generally was the time it took to get a response to an application for legal aid.  Those parts of the documents do not cause me to reject the evidence of any of the applicants.

findings:  mr salehi

26                  Mr Salehi arrived in Australia on 1 September 1999.  On 11 May 2000 he lodged an application for a protection visa under the Act.  On 8 August 2000, a delegate of the respondent refused to grant that visa.  On the same day Mr Salehi applied to the Tribunal to review that decision.  On 9 November 2000, the Tribunal affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa under the Act.

27                  Mr Salehi acknowledges that he was, in accordance with s 430D of the Act, notified of the Tribunal’s decision, on 14 November 2000.  Hence, the period of twenty-eight days thereafter by which the applicant was required by reason of s 478(1)(b) to lodge his application for judicial review of the Tribunal’s decision, was 12 December 2000.  As noted, his application was in fact lodged on 28 December 2000.

28                  I find that, by early December 2000, Mr Salehi had conveyed to Mr Khoshab the request that he be provided with the forms necessary to apply to the Court to review the Tribunal’s decision.  He was aware that his time limitation expired on 12 December 2000, and conveyed that to Mr Khoshab.  By about 4 December 2000, Mr Khoshab had been given supplies of the appropriate forms.  I also find that Mr Khoshab understood that Mr Salehi wanted assistance in completing those forms, and so held on to the forms in the meantime.  Mr Khoshab did not have sufficient time to assist him, and as a result of a discussion with Ms Triplett did not understand that the time limit was not able to be extended.  He told Mr Salehi that the time limit would not be a problem.  He ultimately assisted Mr Salehi to complete the forms on 27 December 2001.

29                  In the period early December to 12 December 2000, I accept that Mr Salehi (as did others) endeavoured regularly to catch Mr Khoshab to get his prompt attention to have the application completed.  He spoke to Mr Khoshab several times but was told that Mr Khoshab was too busy.  I find that sort of contact continued until 27 December 2000.

30                  In one respect, I reject Mr Salehi’s evidence.  I think it is information he has absorbed from others, and does not reflect what passed between him and Mr Khoshab.  It is that Mr Khoshab told him that the necessary forms were not available.  In this instance, as Mr Khoshab was not available to Mr Salehi after he was notified of the decision of the Tribunal until 29 November 2000, there is only a period of five days or so until Mr Khoshab did have the necessary forms.  Mr Khoshab may not have pursued getting the necessary forms immediately when requested to provide them.  That may have been understood as indicating that the forms were not available.  He had the forms by 4 December 2000.  I do not accept that after 4 December 2000, Mr Khoshab would have prevaricated about having the forms.  To the extent that the picture presented by Mr Salehi is that the absence of the forms was an ongoing response rather than a response only for a few days, I do not accept his evidence.

31                  Consequently, I find that Mr Salehi did all that he could reasonably have been expected to do, in his circumstances, to have his application completed and lodged with the Court within time.  He failed to do so because the necessary forms could not be provided to him until 4 December 2000, despite his requests for them, and then they were not provided to him by Mr Khoshab in the circumstances indicated.

consideration of s 478

32                  The contention of the respondent is straightforward.  The decision of the Tribunal is a judicially reviewable decision:  s 475(1)(b).  The application for review in each case is made under s 476 of the Act.  Section 485 makes it plain that the Court has no jurisdiction to review judicially reviewable decisions under the Act otherwise than by the jurisdiction granted by Part 8 of the Act. 

33                  Section 478 provides :

“(1)     An application under section 476 or 477 must :

(a)       be made in such a manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976;  and

(b)       be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2)       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).”

34                  In each case, the twenty-eight day period allowed after notification of the Tribunal’s decision had expired before the application for review of the decision was lodged with the Federal Court.  The respondent contends that s 478(2) does not entitle the Court to entertain the applications.  Consequently, the Court has no jurisdiction to entertain the applications, and the objections to competency must be upheld.

35                  Section 478(2) has been held to be constitutionally valid:  Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 (“Hocine”) per French J at 282 - 283 [46 - 50];  Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285 per Carr J at 291 [34 - 35].  It has also been held that, as a matter of construction of s 478(1)(b), the lodging of an application with the Federal Court within twenty-eight days of the applicant being notified of the decision of the Tribunal is a condition of the Court having jurisdiction to entertain the application:  Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 562 (“Nirmalan”);  Hocine at 282 [41] and [46];  Quevedo-Navarro v Minister for Immigration and Multicultural Affairs [1999] FCA 83 per Wilcox J (with whom Hill and Madgwick JJ agreed) at [6];  Pannasara v Minister for Immigration and Multicultural Affairs [2000] FCA 213 per Wilcox, French and Carr JJ at [9 - 10];  H v Minister for Immigration and Multicultural Affairs [2001] FCA 43 per Wilcox, Weinberg and Conti JJ at [15].  In Nirmalan, Beaumont J (with whom Branson and Emmett JJ agreed) said :

“The terms of s 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, s 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.”

See also Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550 per Beaumont J at 553.  Cp Ayub v Minister for Immigration and Multicultural Affairs [2000] FCA 1844 (“Ayub”) per Lee J.

36                  There have been a number of cases where, in circumstances where an application to review the decision of the Tribunal has been made outside the twenty-eight day period, the Court has upheld an objection to competency and dismissed the application:  see eg Al Adwan v Minister for Immigration and Multicultural Affairs [2001] FCA 706;  Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535 (“Kucuk”);  Ayub;  Gamage v Minister for Immigration and Multicultural Affairs [2000] FCA 1223;  Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186;  Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059;  Radhi v Minister for Immigration and Multicultural Affairs [2000] FCA 777 (“Rahdi”); Duwai v Minister for Immigration and Multicultural Affairs [1999] FCA 1309;  Kumar v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 680 and Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574.

37                  In each matter now before the Court the applicant has been duly notified of the decision of the Tribunal.  In each matter the applicant was in immigration detention at the time that notification was given.  Each was told of the substance or outcome of the Tribunal’s decision orally, and that information was conveyed through an officer of the Department of Immigration and Multicultural Affairs and was translated to the applicant in terms that the applicant understood:  Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 per Jenkinson J at 167 and per Beazley J at 178.  There is no suggestion that any of the applicants were, at the time of notification, positively misled to the effect that he had no right of review from the decision:  cp Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 (“Wang”).

38                  I am also of the view that there is no basis upon which the respondent can be estopped from asserting that an application for review is out of time, so that the Court has no jurisdiction to entertain it.  Estoppel cannot operate to confer jurisdiction on the Court which it does not otherwise have.  Again, there is clear authority to that effect:  Wang per Merkel J at 392; Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 per Davies and Branson JJ at 104 - 107 and per Whitlam J at 111;  Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 per Davies and Gummow JJ at 124 - 125.

39                  In my view, the propositions referred to above are all well-established.  There remains to consider whether, as a matter of construction, s 478(1)(b) and (2) should be construed as operating subject to some form of qualification, and secondly whether in the light of my findings about the particular applicant the qualification has the result that the application is not out of time.

40                  There have been a number of cases where hardship or personal difficulty or personal or administrative error has been put forward as the reason why an application for judicial review is apparently out of time, and (inferentially in some instances) that s 478(1)(b) should be construed as not imposing an absolute time limitation, but one which is subject to a qualification to which the particular circumstances applied.  With one exception of which I am aware, those contentions have all been unsuccessful, and the absolute terms of s 478(1)(b) have been recognised.

41                  In Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550, the application for review was sent by the applicant’s family to the Tribunal, rather than to the Court.  It is necessary, for an application to be lodged with the Court, that it at least be physically left at or delivered to the Court or that it comes into possession of the Court:  Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468.  When the application got to the Court the twenty-eight day time limit had well passed.  Beaumont J at 552 - 553 concluded that s 478(1)(b) prescribes a jurisdictional fact which, in the circumstances, was not satisfied.  In Guendouz v Minister for Immigration and Multicultural Affairs [2000] FCA 766, RD Nicholson J found by reason of s 478(1)(b) that the Court had no jurisdiction to entertain an application lodged outside the twenty-eight day period, notwithstanding the claim that the applicant was not informed that he might appeal to the Federal Court from the Tribunal’s decision, and did not speak English.  The argument that s 478(1)(b) should be construed to accommodate his circumstances, so as to operate with “logic and commonsense” was rejected.  His Honour said at [9] :

“Turning to the second aspect of the contentions for the applicant, those relating to logic and commonsense, it again appears to me that, by the explicit language which it has chosen in s 478, Parliament has left no room for any conclusion other than that it intends that the provision which it has enacted should override any common law considerations and be given effect to precisely in terms of the words chosen.  The bringing of logic and commonsense to the reading of those words adds no other room for the arguments contended for on behalf of the applicant.”

42                  Bariah v Minister for Immigration and Multicultural Affairs [2000] 1253 also concerned, inter alia, an application to the Court which was outside the twenty-eight day period.  The reason for the delay was said to be “misadvice” by the applicant’s migration agent to pursue an alternative course of action by requesting the Minister under s 48B(1) of the Act to authorise the making of a second application for a protection visa.  Moore J considered that s 478(1)(b) was clear, notwithstanding that explanation for the delay.  In Radhi, the contention that the applicant’s limited English skills should somehow lead to the reading down of the “explicit’ wording of s 478(1)(b) was rejected. 

43                  The position was clearly expressed by Sackville J in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1.  His Honour, in delivering the leading judgment of the Full Court, put the position at 28 in the following terms :

“I should add that Pt 8 does contain stringent time limits.  An application must be lodged within 28 days of notification of the Tribunal’s decision and the Court has no power to extend the period:  Migration Act, s 478.  Thus, where an individual, whether through ignorance or mistake, or for some other reason, fails to lodge an application in time, no relief is available under Pt 8 of the Migration Act. …”

44                  There are two decisions which require particular consideration.  In Wang, as noted earlier, Merkel J held that the applicant had not been notified of the decision of the Tribunal for the purposes of s 478(1)(b) because it was implied into s 478(1)(b) that the notification must be one which does not frustrate, or is not calculated to frustrate or negate, the entitlement of the person notified to apply for review.  The literal construction of s 478, his Honour found, would produce precisely the opposite result to that intended by the legislature.  His Honour observed at 394 :

“... where a judge concludes that the legislature could not have intended that a statute could operate in a manner which defeats its manifest object or purpose, then an alternative interpretation must be preferred.  There is a substantial body of authority that supports that approach.”

Reference was made, inter alia, to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 per Stephen J at 311 and per Mason and Wilson JJ at 321;  MacAlister v The Queen (1990) 169 CLR 324 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ at 330;  and Saraswati v The Queen (1991) 172 CLR 1 per McHugh J at 22.  Thus, his Honour concluded at 396 :

“Where logic, common sense and justice require that a matter provided for under a statute ought only to occur after appropriate notice the courts have implied a limitation on the literal meaning.”

45                  In determining the meaning of the word “notification” in s 478(1)(b) of the Act, his Honour concluded that the words used were not intractable so as to exclude a result inconsistent with logic, commonsense and principle. 

46                  Kucuk was a case where the failure to lodge the review application with the Court was the responsibility of an officer of the Department.  His Honour found that the applicant, who was in immigration detention, took her application to the office at the detention centre well within the twenty-eight day period and asked for it to be faxed to the Court.  The relevant officer (his Honour was asked to accept that that person was acting on behalf of the Minister for Immigration and Multicultural Affairs), through error in which the applicant played no part, sent the application to another facsimile machine in the detention centre and not to the Court.  The applicant, not having heard from the Court, but again within the twenty-eight day period, requested that the application again be sent to the Court and the officer concerned made the same error.  Despite his sympathy for the applicant, his Honour concluded :

“The terms of the statute and a line of authority establish that I have no power to grant an extension of time irrespective of the justice of doing so in the circumstances of the particular case .”

47                  Hely J in Kucuk also considered whether s 256 of the Act provided some insight into the proper construction of s 478(1)(b) of the Act.  Section 256 relevantly provides :

“Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention ... afford to him or her all reasonable facilities ... for taking legal proceedings in relation to his or her immigration detention.”

His Honour noted, but did not decide, the question whether an application for judicial review of a decision of the Tribunal is a proceeding “in relation to ... immigration detention.”  Section 256 was previously s 96 of the Act.  In relation to that section, Sheppard J in Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27 considered that the Court had power under the Federal Court of Australia Act 1976 (Cth) and under O 10 of the Federal Court Rules to direct the respondent to cause applicants in immigration detention to be brought to a particular detention centre to facilitate the preparation and hearing of their cases.  His Honour also considered s 256 (then s 96) of the Act was a source of such power.  He said at 33:

“... the intention of the section was to confer a right on a person in custody to be accorded all reasonable facilities for obtaining legal advice and taking legal proceedings. ...”

There does not appear to have been any focus upon the words “... in relation to his or her immigration detention” in the section.  Even if an application for judicial review of a decision of the Tribunal is a proceeding in relation to immigration detention (as to which, see also Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747), Hely J in Kucuk held that that provision did not assist the applicant for two reasons.  Firstly, there was provided a facility to transmit applications for review to the Federal Court, even though a mistake occurred in the operation of that facility.  Secondly, his Honour concluded at [20] that s 478 in its terms left no room for its operation to be conditional upon compliance with s 256.

48                  In the light of the findings of fact I have made concerning the applicants in these matters, I consider that the decision in Kucuk addresses the same issues which I am called upon to address.  They arise from the fact that the administration of the Woomera Detention Centre, for which I assume the respondent to be responsible at least to the extent of providing a facility to send by facsimile applications for review of decisions of the Tribunal to the Court at the request of persons who are kept in the Centre.  It is a considered decision of a judge of the Court.  I should follow it unless in my view it is plainly wrong:  Al Adwan v Minister for Immigration and Multicultural Affairs [2001] FCA 706 per Sackville J at [40 - 41].  I do not consider that his Honour’s decision is plainly wrong.  His Honour had regard to the plain words of s 478(1)(b) and (2) and to the decisions concerning them, some of which I have referred to above.  With the exception of Wang, they all recognise that those provisions are quite explicit.  As his Honour did in Kucuk, a number of those decisions recognise that s 478(1)(b) and (2) have the potential to work significant injustice.  I do not consider that Wang is directly on point, for reasons I have expressed.

49                  I have not found that the respondent, through his officers, set out deliberately to prevent the applicant from exercising his right to seek review of the Tribunal’s decision.  It is necessary to determine the legislature’s intention where the right of review of a Tribunal’s decision provided for by s 475 and s 476 has been, in a practical sense, frustrated by the conduct of the officers of the Department after due notification (cp Wang) of the Tribunal’s decision.

50                  The cases generally regard the legislative intention of s 478(1)(b) and s 478(2) to be clear, and not to permit any implied qualification.  In addition, I regard Hely J’s decision in Kucuk as being a decision directly on point and one which is not clearly wrong.  The plain conclusion of his Honour’s decision is that the legislative intention the time limit imposed by s 478(1)(b) should apply, notwithstanding that an applicant for judicial review has within the prescribed time done all that could reasonably have been done to lodge an application for review to the Federal Court and that the failure to do so was due to error on the part of an officer of the respondent.  It is surprising that that should be the legislative intention.  It is, fortunately, rare that such an unfair and irrational intent on the part of the legislature is apparent.  Hely J has concluded, in effect, that such an intent is apparent by the plain words of s 478(1)(b).  His Honour’s conclusion reflects the submission on behalf of the respondent in this case. 

51                  One may struggle to perceive any rationale underlying that legislative intent.  Section 478(1)(b) may generally operate fairly once notification of the Tribunal decision is given to a person who is not in immigration detention.  In the case of persons in immigration detention under s 189, they are detained until removed from Australia or deported or are granted a visa:  s 196.  During the period of detention, that person is liable for the costs of detention:  s 209.  As the evidence shows, such persons are frequently unable to read or speak English, and sometimes are illiterate in their own language.  At least with the seventeen persons to whom I have referred, they were dependent upon those maintaining the particular detention centre for the provision of forms to enable them to seek review to the Federal Court, as their requests for legal assistance were not met.  They did not all receive those forms when requested, or experienced delays in being able to convey their requests for the necessary forms or then in receiving the forms.  None of those delays were their fault.  They could have done no more to get the forms.  As I have found, some residents of Woomera Detention Centre went on a hunger strike to draw attention to their requests for the forms.  They were then, in all instances, physically unable by themselves to complete those forms in English, and in some instances in their own language.  They sought help from the interpreters available, on a very limited basis, at the Woomera Detention Centre.  They did not receive that help in a timely manner, through no fault of their own but due to the limited time the interpreters had available.  The other duties of interpreters were very substantial.  They had to prioritise their time allocations, and had little time available to assist the applicants as requested.  The unfortunate result is that these applications are all outside the twenty-eight day time limit prescribed by s 478(1)(b).

52                  For the reasons I have given I propose to follow the decision of Hely J in Kucuk.  It follows that I conclude that the words of s 478(1)(b) are plain, and that I should give effect to the legislative intention that each of these applications is out of time, irrespective of the particular circumstances which I have found in each case.  There is no scope for implying some qualification into s 478(1)(b) to accommodate the individual circumstances of any of the applicants.

53                  In my view it is also plain that s 39B of the Judiciary Act 1903 (Cth) does not provide an alternative source of jurisdiction to the Court to entertain these applications:  see s 485(1) and Duwai v Minister for Immigration and Multicultural Affairs [1999] FCA 1309 per Sackville J.

order

54                  In my judgment, the application should be dismissed.  Given the difficulties experienced by the applicant, I consider it appropriate to extend the time for the applicant to appeal from the decision to a period of about six weeks.  In addition, to avoid any issue as to whether this decision is one in respect of which leave to appeal need be sought, to the extent necessary I grant leave to appeal from this decision.  I fix 14 September 2001 as the date by which any appeal from this decision should be filed and served.

55                  As Hill J said in Barzideh v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 337 at 341, I am “constrained by the legislature to sit idly by while injustice is done”.  As his Honour did in that case, at 341, I note that the applicants might apply in the High Court’s original jurisdiction under s 75(v) of the Constitution for constitutional writs in a proper case:  Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [113], or for judicial review relying upon s 39B of the Judiciary Act 1903 (Cth).  Whether those courses of action may be appropriate in this instance is not a matter upon which I comment.

56                  Given the circumstances explaining Mr Salehi’s failure to seek review of the Tribunal’s decision within the period fixed by s 478(1)(b) of the Act, in my view there should be no order for costs in favour of the respondent.

Associate:

Dated:              27 July 2001

SCHEDULE A