Ismail, Mohamed Nauman Ahmed v Minister for Immigration & Multicultural Affairs [1998] FCA 1654

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG907 of 1998

BETWEEN: MOHAMAD NAUMAN AHMED ISMAIL

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: WILCOX J

DATE: 11 DECEMBER 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT WILCOX J: On 1 September 1999 the applicant, Mohamed Nauman Ahmed Ismail, filed an application in the Court seeking review of a decision of the Refugee Review Tribunal made on 12 August 1998, that it did not have jurisdiction to review a decision of a delegate of the Minister refusing to grant him a protection visa. The Tribunal reached this conclusion because it held that the application for review of the delegate's decision had not been lodged within the period of 28 days prescribed by s 412(1)(b) of the Migration Act 1958. Section 412 deals with an application for review of an "RRT-reviewable decision", a term which includes a decision by a delegate that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol: see s 411(1). Paragraph (b) of s 412(1) limits entitlement to review to a case where the application is "given to the Tribunal within the period prescribed being a period ending not later than 28 days after the notification of the decision." Regulation 5.03 deals with notification of the decision and prescribes a period of seven days, after which a decision is deemed to have been received. In the present case it was conceded before the Tribunal that the letter containing the delegate's decision was received within the seven day period. The Tribunal calculated that, assuming an allowance of seven days for receipt of the delegate's decision, the last day for filing the application for review was Friday, 13 March, 1998. It seems that, on the afternoon of that day, Mr Ismail consulted a firm of migration agents and was advised to seek review of the delegate's decision. An application for review was prepared and put onto the migration agent's facsimile transmission machine for transmission to the Department. Apparently this took place at 4.45pm. Unfortunately, the transmission failed. The migration agent did not receive the usual confirmation of receipt. So she telephoned the Department. However, she could not obtain any response that day. Nothing could be done over the weekend and, on Monday 16 March, the migration agent telephoned the Department to inquire about receipt of the application form. The officer to whom she spoke could find no evidence of it having been received by the Tribunal. The agent then transmitted a further copy of the application. It was received on the morning of 16 March. However, when the Tribunal member looked at the case, she came to the conclusion that she had no jurisdiction because the application for review had not been received within the 28 day period. It seems to be clear beyond argument that the 28 day period expired at the close of business on Friday, 13 March. Mr Ismail applied for review of this decision pursuant to an application that showed him as acting on his own behalf. At a later stage, he had solicitors acting but they have now ceased to act. The matter came before the Court at a directions hearing on 8 October 1998. The applicant did not appear, but the solicitor for the respondent said she had been asked to mention the matter on behalf of the applicant and indicated the parties' agreement to a timetable that required the filing of the relevant documents by 29 October, any affidavits of the applicant by 12 November and any affidavits in reply by 26 November. The matter was fixed for hearing at 10.15 today, 11 December. As I understand the position, these directions were transmitted to the applicant. The respondent filed the relevant documents, albeit three days late. No affidavits were filed on behalf of the applicant. In the normal course one would have expected the applicant to appear today either on his own behalf or by a representative. However, two days ago, on 9 December, my Associate received a faxed letter purporting to come from the applicant. It mentioned a hearing date of 11 December 1998 and read as follows: "This is to inform you that I will not be able to appear for my case as I am very sick. Therefore I humbly apply for a postponement. I also have no lawyer as my previous lawyer has stopped acting for me. As I cannot pay the legal fees I cannot get a lawyer immediately, therefore please be kind enough to give me a reasonable time to arrange legal fees and to get a lawyer. I enclose the medical certificate for my illness." The accompanying medical certificate was from a practitioner at Auburn. It certified that the applicant "is suffering from bronchitis and is unable to attend work one week". The certificate was dated 7 December. Unfortunately, there was no indication on the facsimile of a point of contact so no reply could be sent. The question arises as to what course should be taken today. I am not impressed with the medical certificate. It seems to me the condition certified is unlikely to prevent some participation in the matter today, at least an appearance by the applicant to further explain his position. The certificate tends to suggest that any illness from which the applicant is suffering is being used as an excuse for an adjournment. However, I am conscious of the fact that refusal of the application has significant consequences for the applicant. If I thought it was arguable that the Tribunal erred in its approach, then I would be inclined to give a short adjournment (perhaps for no more than a week or ten days) in order to enable the applicant to attend. However, it seems to me clear that the Tribunal was correct in its assessment of the matter. It might perhaps be regarded as very hard on people in the position of this applicant that there is no provision whatever for extension of time for filing an application for review. There must be circumstances where, for reasons for which the particular person cannot be criticised, an application is not submitted within the specified period. In the present case, it might fairly be said it was dangerous to leave consultation with the migration agents until the final afternoon. However, in the normal course, the application would have been lodged in time. Regulation 4.31.3(d) expressly provides for the lodgment of an application for review by means of electronic facsimile transmission. The unfortunate fact is that is that the fax machine broke down at the critical moment, very late on the Friday afternoon. However, whatever feelings one may have about the harshness of the result, it seems to me clear there is no provision for any extension of time. This is my own understanding of the position and Mr Smith, counsel for the Minister, confirmed this understanding after consideration of the relevant regulations. If this is the position, it is plain the application for review must fail and that no good purpose would be served in bringing the parties to Court on a later occasion. I note that, when the matter was before the Tribunal, it was not suggested the Tribunal had a discretion to extend time. In correspondence with the Tribunal immediately after the application was lodged, the migration agents, who are experienced and legally qualified, did not argue there was power to extend time. Their letter was really a plea of exculpation and an expression of hope that the Tribunal would be prepared to overlook the problem of the application being out of time. Whilst no doubt the Tribunal member had some sympathy with their position, there was nothing she could do about it. Having regard to the fairly unmeritorious application for adjournment, and the fact that the application for review appears to be hopeless in any event, it seems to me I would not be justified in adjourning the matter. Accordingly, I propose to dismiss the application. The order I make is that the application be dismissed with costs. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox