Sahak v Minister for Immigration & Multicultural Affairs [2002] FCAFC 215

FEDERAL COURT OF AUSTRALIA

Sahak v Minister for Immigration & Multicultural Affairs [2002] FCAFC 215 IMMIGRATION – application for review of decision of Refugee Review Tribunal – application out of time under s 478(1)(b) Migration Act 1958 (Cth) – where failure to apply in time not fault of applicant – inability of Federal Court to extend time for lodgment of application irrespective of circumstances. DISCRIMINATION LAW – whether time limit in s 478(1)(b) Migration Act 1958 (Cth) racially discriminatory – whether time limit discriminated against persons for whom English was not a first or literate language and who were held in immigration detention – whether s 10(1) Racial Discrimination Act 1975 (Cth) applied so as to extend time for application for review – inability to comply not based on race, colour or national or ethnic origin but on individual personal circumstances of applicant.

Migration Act 1958(Cth): s 478(1)(b) Racial Discrimination Act 1975(Cth): s 10(1) International Convention on the Elimination of All Forms of Racial Discrimination (1975): Arts 1, 5

Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995, approved Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535, referred to Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672, referred to Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5, applied Mabo v State of Queensland (1998) 166 CLR 186, applied Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386, referred to Oguzhan v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 285, referred to Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516, referred to Mayne Nickless Limited v Multigroup Distribution Services Pty Ltd [2001] FCA 1620, referred to Ayub v Minister for Immigration and Multicultural Affairs (2001) 181 ALR 522, referred to Nguyen v Refugee Review Tribunal (1997) 74 FCR 311, applied Melkman v Federal Commissioner of Taxation (1988) 20 FCR 331, applied MOHAMMAD FAROOQ SAHAK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S 148 of 2001 NORTH, GOLDBERG & HELY JJ 18 JULY 2002 MELBOURNE