FEDERAL COURT OF AUSTRALIA

SBBM v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 183

SBBM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.21 of 2002

MANSFIELD J

28 FEBRUARY 2002

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

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

REASONS FOR JUDGMENT

1                     On 29 January 2002 the applicant applied for relief under s39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 18 September 2001.  The Tribunal affirmed a decision of a delegate of the respondent refusing to grant the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).  Following service of the application on the respondent, the respondent objected to the competency of the application because it is out of time.  As the application was made after the amendments to the Act affected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the amending Act), the court is directed by the transitional provisions to apply the Act as amended to this application.

2                     On the evidence, I find that the decision of the Tribunal was sent to the applicant by the Tribunal on 18 September 2001 by facsimile addressed to the Manager of the Woomera Immigration Reception and Processing Centre.  The applicant was at the time, and still is, a resident of that Centre.  I also find that an officer of the respondent at that Centre then notified the applicant of the decision, also on 18 September 2001.  The notification was given at an interview, with the assistance of an interpreter.  I am satisfied that the applicant understood the nature of the Tribunal’s decision, in particular that it had affirmed the decision not to grant him a protection visa: see Long v Minister for Immigration, Local Government & Ethnic Affairs (1996) 65 FCR 164.

3                     I also find that the applicant was then given a form that he could sign to the intent that it was to be conveyed to his lawyer to indicate that he wished to consider appealing from the decision of the Tribunal.  That form is dated 18 September 2001 but I accept the evidence that the applicant in fact indicated only on 21 September 2001 that he wished to pursue the avenue of judicial review before the Court.

4                     The period within which he might have done so in time would have expired on 16 October 2001, being 28 days after the date of notification of the decision of the Tribunal: see s 477(1) of the Act.

5                     In my view s 477(1) of the Act applies to this application because the decision of the Tribunal is a privative clause decision as defined in s 474(2) of the Act and it is not excluded by s 476 of the Act from decisions within the jurisdiction of the Court.  The consequence is that the application to the Court was required to have been made within 28 days of notification of the decision.

6                     In his application the applicant has explained that he “did not understand [he] had to lodge [his] application with the Court within 28 days due to [his] poor literacy and comprehension of verbal material”.  The application itself seeks an extension of time within which it might be brought.  The applicant today has explained further why his application was made out of time.  He said that promptly after being notified of the decision, he decided to seek review by the Court and asked a psychologist at the Centre to assist him in filling out the necessary forms.  He did not get any assistance from that person for about one month, and so followed up his inquiry.  He complains that that person let him down, and that he was then told that his application was too late, and that he should have done it himself.  He made the telling point that if he had known how to do so, he would have done so.  He simply did not know how to do so.  After the period of 28 days had expired, the applicant said that he was given some assistance by an officer of the respondent stationed at the Centre to fill out the application. There was then some further delay whilst a particular reference number was identified and inserted on the form, before it was lodged.  By then the application was well out of time in any event. 

7                     The applicant’s circumstances demonstrate yet again the disadvantageous position in which persons in Immigration Reception and Processing Centres often find themselves.  It is easy to understand how, sometimes, applications are made to the Court belatedly or in terms which are not referrable to grounds of review or grounds for relief available under the legislation.

8                     In this matter it is not necessary to decide whether I accept the applicant’s explanation for the delay for reasons which appear below.  I have no reason not to do so, and the respondent has not contended that I should not do so.  If that explanation were accepted, it would explain satisfactorily to me why the application was so belated.

9                     However, the Minister contends that s 477(2) in conjunction with s 477(1) precludes the Court from granting to the applicant an extension of time within which to make the application, whatever the circumstances.  Section 477(2) relevantly provides that the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application to review a decision of the Tribunal outside the period of 28 days from notification of the decision.  Before the amending Act came into force, s 478 of the Act was substantively in terms to the same effect as that now contained within s 477(1) and (2). 

10                  In Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 (Salehi), I addressed a claim similar to that which the applicant now presents.  It related to s 478 of the Act prior to its amendment by the amending Act.  There is a long line of cases to which I referred where applications for judicial review under the Act, made outside the 28 day period, had been held to be incompetent and had been dismissed: see [36].  I decided in that case that the effect of s 478(1)(b) and (2) were plain: they precluded the Court from extending time to any applicant to institute and maintain an application for judicial review under ss 475 and 476 of the Act as those provisions then stood.  I can see no relevant difference between the wording of those provisions, and the wording of s 477(1) and (2) in the Act.  Nor can I see any relevant difference between the source of the Court’s jurisdiction to review decisions of the Tribunal now under s 39B of the Judiciary Act and that which previously obtained, nor how that jurisdiction may be invoked.

11                  In those circumstances, I follow the decision in Salehi for the reasons I expressed in that case. As I pointed out in that case the decision of Hely J in Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 is to the same effect.

12                  Accordingly, I conclude that I do not have the power to extend the time within which the applicant may bring an application under s 39B of the Judiciary Act for review of the Tribunal’s decision.  I must therefore uphold the objection to competency and dismiss the application, irrespective of the circumstances in which the application came to be filed out of time.  The application is therefore dismissed.

Associate:

Dated:              1 March 2002