FEDERAL COURT OF AUSTRALIA Gamage v Minister for Immigration and Multicultural Affairs [2000] FCA 1223 IMMIGRATION – Refugee – application for review of decision of Refugee Review Tribunal filed one day outside the 28-day period allowed by s 478 of Migration Act 1958 (Cth) – applicant attended District Registry the preceding day (last day of 28-day period) and lodged a document – Registry did not accept it – whether document constituted an application under s 476 of Act for review of Tribunal's decision – question of fact. Migration Act 1958 (Cth) s 478 Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155, referred to Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611, referred to Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468, referred to PUSHPARANI WEPITIYA GAMAGE AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 629 of 1999 LINDGREN J 13 SEPTEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 629 OF 1999 BETWEEN: PUSHPARANI WEPITIYA GAMAGE AND OTHERS Applicants AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LINDGREN J DATE OF ORDER: 13 SEPTEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed as incompetent. 2. The applicants pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 629 OF 1999 BETWEEN: PUSHPARANI WEPITIYA GAMAGE AND OTHERS Applicants AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LINDGREN J DATE: 13 SEPTEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 By notice of objection to competency filed on 5 July 2000, the respondent ("the Minister") objects to the Court's jurisdiction to try the application. By their application filed on 15 June 2000, the applicants apply under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the RRT") made on 3 May 2000 and notified on 17 May 2000. Section 478 of the Act provides, relevantly, as follows: "(1) An application under s 476…must: (a) be made in such manner as is specified in the Rules of Court made under 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)." The period of 28 days referred to in par 478(1)(b) expired on Wednesday 14June 2000. Accordingly, the lodging on 15 June of the application which commenced this proceeding was one day late and the Court is denied power to extend the time. 2 The case is concerned principally with events that occurred in the office of the New South Wales District Registry of the Court on the afternoon of Wednesday 14 June 2000. It is common ground that the first applicant ("Ms Gamage") then attended at that office knowing that that was the last day for the lodgment of an application for review of the RRT's decision and in fact "lodged" with that Registry a document that was not accepted by the Registry for filing; cf Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468. The issue is whether the document which she lodged, and is no longer available, constituted an application under s 476 for review of the RRT's decision notified on 17 May. 3 The hearing proceeded on the basis that in order to satisfy the notion of an application under s 476 of the Act for review of the RRT's decision, it was both necessary and sufficient that the document identify the RRT decision complained of and make it clear that what was sought was a review of that decision, and that the Court's power to dispense with compliance with its Rules and to allow amendments would enable other deficiencies to be overcome: cf Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611. Background Background facts 4 Ms Gamage is the mother of the other three applicants and it will be convenient if I refer to her alone since it is not in dispute that the objection to competency, if successful against Ms Gamage, will also be successful against the other applicants. 5 Ms Gamage is a Tamil citizen of Sri Lanka who arrived in Australia with her three children on 6 October 1998. They had been living in Germany. On 20 November 1998 she lodged an application for protection visas for herself and her children. On 30 November 1998 a delegate of the Minister refused the application. On 24 December 1998 Ms Gamage and the three children sought review by the RRT of that decision. On 3 August 1999 the RRT affirmed the delegate's decision. 6 In proceeding N 929 of 1999 Ms Gamage applied to this Court for review of the RRT's decision. On 10 December 1999 Emmett J ordered, pursuant to s 481(1)(b) of the Act, that the application to the RRT be referred to the member who had made the original decision on 3 August 1999 for further consideration and his Honour directed that the member make a finding as to whether certain social ostracism in Germany referred to by Ms Gamage in her application to the Minister, might in fact occur, and, if so, whether it would amount to persecution for a Convention reason. 7 In reasons for decision signed by the member on 3 May 2000, the RRT concluded that Ms Gamage's fear of social ostracism if she should return to Germany was not well founded and that, in any case, it was not so serious as to amount to persecution. The RRT's decision was to affirm its earlier decision not to grant the protection visas. The decision was handed down on 17 May 2000. Records of the RRT in evidence show that Ms Gamage attended on the handing down of the decision on 17 May when she was given a copy of the decision. At the same time she was given a letter dated 17 May 2000 from the RRT advising her that she had a right to seek review of the decision by this Court and that an application for review must be filed within 28 days from 17 May, that is, by 14 June. 8 Ms Gamage attended the office of the New South Wales District Registry of the Court on the afternoon of Wednesday 14 June to lodge a document. She had a conversation with Counter Officer Kate Benson. There is a conflict in their testimony as to what transpired, although it is common ground that Ms Gamage lodged the document and Ms Benson refused to accept it for filing. 9 In a directions hearing on 2 August 2000, I raised with counsel for the parties the question of the appropriate way in which the testimony of Ms Benson might be obtained. It was agreed that I would call her as a witness and that counsel for each party would have the opportunity of cross-examining her. This appeared to be a preferable course to her being called as the witness of either party. 10 On Wednesday 14 June, when dealing with Ms Gamage, Ms Benson spoke to the Duty Registrar, Deputy District Registrar Segal, about Ms Gamage's document, and on Thursday 15 June, when Ms Gamage returned to the Registry to file the application by which this proceeding was commenced and was again dealt with by Ms Benson, Ms Benson spoke to the Duty Registrar, Deputy District Registrar Kavallaris, about her matter. It was agreed at the directions hearing that the two Deputy District Registrars would provide affidavits but would not be required for cross-examination. 11 In the result, the evidence on the hearing before me comprised that of Ms Gamage and Ms Benson, both of whom were cross-examined, and affidavits of the two Deputy District Registrars. As well, relevant documents were admitted as exhibits. 12 Ms Gamage swore an affidavit on 21 July 2000 and made a statement dated 7 September 2000 which she adopted in the witness box elaborating on her affidavit. Ms Gamage testified that from the time she received the letter dated 17 May 2000 from the RRT, she understood that Wednesday 14 June was the last day for her to lodge an application to this Court for review of the RRT's decision. She said that by early June 2000, the solicitors who had represented her before the RRT returned to her their file in which was a form of the application for an order of review relating in her earlier proceeding N 929 of 1999. She testified that prior to Wednesday 14 June she drafted a similar application for an order of review in respect of the RRT's decision handed down on 17 May, using the earlier application drafted by her former solicitor as a precedent, and that a friend typed up the application. In her supplementary statement dated 7 September 2000 she referred to the various elements in the precedent and explained how she copied or adapted them in the fresh application. 13 Ms Gamage states that on 14 June she attended at the Registry office at about 2.00pm with the form of application. It is not in dispute that the person to whom she spoke was Ms Benson. According to her affidavit, Ms Gamage informed Ms Benson that she wished to lodge the application and Ms Benson took it away then returned and said: "This document is not correct because you refer to review of both an RRT decision of 3 May 2000 and a Federal Court decision of 10 December 1999. I cannot accept the document. Here is a correct form for your application for review. Please complete it referring only to the RRT decision of 3 May 2000 and bring it back". According to Ms Gamage's affidavit, the following exchange took place: [Ms Gamage]: "Today is the last day for me to lodge an application. I must lodge my application today." [Ms Benson]: "I will stamp the application you have brought in today to prove that you were here. You can file the new application tomorrow." Ms Gamage stated that Ms Benson stamped the application she had brought in and that she (Ms Gamage) left the Registry office with the application she had drafted and with the new form which Ms Benson had given to her to complete. She said that she returned home and completed the new form and that a friend of hers typed up the application. 14 In her supplementary statement of 7 September, Ms Gamage stated that Ms Benson also said to her: "I will stamp the application you have brought in today to prove that you were here. You can file the new application tomorrow." and "Tomorrow you should also bring an affidavit to say that you attended the Federal Court Registry to file your application." According to her supplementary statement, Ms Gamage left the Registry office at about 2.30pm after Ms Benson stamped the application, went downstairs and spoke to a friend who was waiting for her in a car, then returned to the Registry a few minutes later, when she had a further conversation with Ms Benson to the following effect: [Ms Gamage]: "Why do I need to write an affidavit? To write an affidavit I need a lawyer. I do not have a lawyer." [Ms Benson]: "You can write the affidavit yourself and bring it in to the court tomorrow." Ms Gamage stated that she left the Registry office a second and final time at about 2.45pm. 15 In her supplementary statement Ms Gamage stated that when she completed at home the form Ms Benson had given her, she also wrote out an affidavit which her friend typed for her. 16 On Thursday 15 June Ms Gamage returned to the Registry office and again spoke to Ms Benson who accepted the application on the new form. Ms Gamage states that Ms Benson pointed to some papers and said words to the effect, "you will no longer need these papers", and that Ms Benson then took the papers and put them in a bin. She states that she no longer has a copy of the application that was stamped on 14 June and assumes that it was one of the papers that Ms Benson put in the bin. 17 Ms Benson gave evidence in an obviously frank and open manner. I have no hesitation in accepting her evidence. She was not in the least way defensive and impressed me as a transparently honest witness who simply wished to tell all that she could remember of the events in question. 18 Ms Benson said that she was the counter officer who spoke to Ms Gamage and that she recalls that the document which Ms Gamage lodged on 14 June was a notice of appeal that referred to a judgment of Emmett J given in December 1999. She said that she did not read the "argument" contained in the document but recalled seeing the words "notice of appeal" at about the middle of the front page (in Federal Court Form 55 (Notice of Appeal) those words do appear below the heading on the front page). Ms Benson said that she checked on the computer and satisfied herself that Emmett J had, indeed, on 10 December 1999, given a decision on an application brought by Ms Gamage, but observed that that decision was favourable to Ms Gamage. Ms Benson said she could not understand why Ms Gamage would wish to appeal against it. 19 Ms Benson went away and discussed the matter with the Duty Registrar, Deputy District Registrar Segal, then returned to speak again with Ms Gamage. Ms Gamage had with her some papers which included the letter dated 17 May 2000 from the RRT. Ms Benson said that this suggested to her that perhaps Ms Gamage intended to apply for review of the decision of the RRT to which that letter referred. Ms Benson again spoke with Deputy District Registrar Segal. Ms Benson returned to Ms Gamage and informed her that there was no alternative to the preparation and filing of an application for an order of review. She gave Ms Gamage a Federal Court Form 56 (Application for an Order or Review) together with a form of affidavit and invited Ms Gamage to complete the Form 56. She said that Ms Gamage said that she had to lodge her application that very afternoon because it was the last day for doing so. Ms Benson invited Ms Gamage to fill in Form 56 in the Registry. According to Ms Benson, Ms Gamage said that she could not do so because she had to collect her children from school. Ms Benson inquired whether there was not a friend who could collect them, since there remained, according to Ms Benson, sufficient time before the Registry office was due to close in which, as she informed Ms Gamage, she could fill in the application by hand. She stated that Ms Gamage appeared to be "distressed" and "looked miserable" and said that she had no-one who could collect the children. Ms Benson then said that if Ms Gamage returned the following day, she (Ms Benson) would say that she (Ms Gamage) had attended the Court on the afternoon of Wednesday 14 June. Ms Benson denied that she assured Ms Gamage that it would be in order for her to lodge the application the following day. 20 In her testimony, Ms Benson said that notwithstanding what Ms Gamage said, for her own part she had not been able to be completely certain whether 14 June was indeed the last day of the 28 day period for lodgment of an application for review of the RRT decision, because she had had experience previously of cases in which an unsuccessful applicant before the RRT had been "notified" of the RRT's decision some days after the date on which the decision was given and the notification letter dispatched by the RRT. 21 Ms Benson said that on Thursday 15 June Ms Gamage returned to the Court and saw her again. Ms Gamage lodged an application in accordance with Federal Court Form 56 together with an affidavit sworn by her on that date, 15 June. 22 In an affidavit, Deputy District Registrar Segal stated that during the afternoon of Wednesday 14 June, when he was Duty Registrar, Counter Officer Benson showed him an initiating process document that had been presented at the Registry counter by a female person who he understood to be Ms Gamage. He stated in his affidavit: "4. The document presented stated that the named person or persons (I cannot recall which) wished to appeal a judgment of Justice Emmett given in December 1999. 5. ……………………………………………………. 6. I do not recall the content of the document other than its mention of the judgment of Justice Emmett." Registrar Segal deposed that shortly afterwards Ms Benson showed him a computer print-out of Emmett J's judgment from which he concluded that his Honour's orders were favourable to Ms Gamage. He said he recalled remarking to Ms Benson that it did not make sense that Ms Gamage wished to appeal against Emmett J's judgment and suggested that there must be a subsequent decision of the RRT. He stated that he asked Ms Benson to clarify this with Ms Gamage and, if it was the case, to give her Federal Court Form 56 (available at the Registry counter) to complete. 23 In her affidavit, Deputy District Registrar Kavallaris stated that she was Duty Registrar in the New South Wales District Registry on Thursday 15 June between 9am and 1pm and recalled that Ms Benson brought to her a form of application for an order of review which recorded that Ms Gamage had been notified of the RRT's decision on 17 May 2000. Ms Kavallaris observed that, accordingly, the application appeared to be out of time. Ms Benson told Registrar Kavallaris that Ms Gamage had attended at the Registry the preceding day when a document lodged by her had not been accepted for filing. Registrar Kavallaris attended at the counter where Ms Gamage was accompanied by a male companion and she informed the male companion (Ms Gamage's understanding of English is limited) that the application would be accepted for filing but that the respondent Minister might take issue as to whether it was filed in time and it would be for the Court to determine that question. Registrar Kavallaris made a handwritten note on the application as follows: "(KB) says applicants came in on 14/06/00 but had no forms". Registrar Kavallaris observes that this should probably read as "no correct forms". Reasoning 24 The document that Ms Gamage lodged with the Court on the afternoon of Wednesday 14 June is no longer available to be tendered in evidence. I find that it was simply a notice of appeal against the orders made by Emmett J on 10 December 1999. 25 Apart from the evidence of Counter Officer Benson and Deputy District Registrar Segal to that effect, there are two pieces of independent evidence which tend in the same direction. First, there is Ms Gamage's affidavit of 15 June 2000 which includes the following: "5. I attended the Federal Court Registry on 13 June 2000 to file the Notice of Appeal and I was given the Federal Court forms and to make an Application for Extension of Time to File and Serve the Notice of Appeal". (my emphasis) In her supplementary statement Ms Gamage said that when she composed that paragraph of her affidavit she used the document titles that appear in it because they were the titles of forms given to her by Ms Benson in the Registry office on 14 June. But it is highly unlikely that Ms Benson would have given Ms Gamage forms of those kinds having regard to the fact that Ms Benson's eventual understanding on 14 June was that Ms Gamage wished to apply for judicial review of a decision of the RRT. There can be no doubt that on 14 June Ms Benson gave Ms Gamage a form of Application for an Order or Review (Form 56). Probably the correct explanation of the reference to the document titles mentioned in her affidavit is that there were documents of those titles in her solicitor's file that had been returned to her. 26 The second matter to which I referred concerns the application for an order of review that Ms Gamage filed to commence this proceeding on 15 June. That document had borne above the names of the parties: "ON APPEAL from the judgement of his Honour Justice Emmett" and those words are obliterated by a heavy black line through them. Of course, there is nothing untoward in the fact of the obliteration, but the question that arises is how the words came to be on the document in the first place. Ms Gamage said that they were typed on it on the night of 14 June or the morning of 15 June, that is, after she had come home from the Registry on 14 June. But what had emerged at the Registry on the afternoon of 14 June was that it was an error to refer to the decision of Emmett J and that Ms Gamage's application for an order of review should refer to the decision of the RRT of 3 May 2000 notified on 17 May 2000. Irrespective of when and how the words came to be typed on the application, I think it probable that they were copied from a notice of appeal in the solicitor's file and that Ms Benson did not give Ms Gamage a form of notice of appeal. 27 There are aspects of Ms Gamage's evidence that are unsatisfactory. In her affidavit of 15 June, Ms Gamage said that the decision of the RRT was posted to her and she received it on 17 May. Not only would it be impossible for a decision handed down on 17 May to be delivered by post at Narwee the same day, but Ms Gamage stated in her affidavit that she attended the RRT on 17 May and collected the decision in person (the RRT records are also to this effect). The discrepancy is inconsequential except as to the confidence I should have in Ms Gamage's testimony. 28 Ms Gamage and Ms Benson do not seem to have been at issue over the question whether there was sufficient time remaining before the Registry office closed for Ms Gamage to fill in the application for an order of review in the Registry office on 14 June. Why then did she not do so? Ms Benson's answer is that Ms Gamage said she had to collect her children from school and had no-one else able to do so. Her testimony was that Ms Gamage, who had no doubt that 14 June was the last day for the filing of an application to challenge the RRT's decision, appeared to be "distressed" and "miserable". Ms Gamage's answer is that Ms Benson assured her she could file the application the following day. 29 I have no hesitation in accepting Ms Benson's testimony and rejecting that of Ms Gamage on this issue. Acceptance of Ms Gamage's version seems to require a conclusion that Ms Benson lied, since, according to Ms Gamage, she had previously arranged for someone else to collect the children from school and did not speak to Ms Benson at all about the collection of the children from school. I have no doubt that Ms Benson told the truth to the best of her recollection. Moreover, I am persuaded that she had a good recollection of the events in question. 30 Finally, a difficulty arising on the evidence is the question why Ms Gamage did not complete the application in the Registry office rather than trouble herself to return the following day. In my view the explanation is probably the one arising from Ms Benson's evidence: Ms Gamage had to collect children from school and felt that she had no alternative but to leave the Registry office. 31 Ms Benson said that she would have remembered if the document produced on 14 June had referred to s 476 of the Act and purported to be an application under that section. She said that while her practice is not to read through the entire content of documents presented to her, she checks such formal matters. She agreed that on finally arriving at the understanding that Ms Gamage wished to apply for review of a decision of the RRT, she did not re-read the document that Ms Gamage had lodged with the Registry, but I accept her evidence that while she did not read the "argument" (as she called it) in the document, she would have observed a reference to the RRT or to s 476 of the Act, particularly since so much trouble was being taken to attempt to understand what it was that Ms Gamage wished to do by the document. Ms Benson explained that she followed a practice of facilitating minor alterations to a Form where that is all that is required to enable a document to be filed but that this was not the case with Ms Gamage's document. 32 There is no reason not to accept Ms Gamage's testimony that by early June 2000 her former solicitors' file was returned to her and that she composed the document that she took to the Registry on 14 June based on a document in that file. The file is not in evidence (it may no longer be in its original state). The decision of Emmett J dated 10 December 1999 was far from entirely favourable to Ms Gamage. His Honour did not set aside the RRT's decision and merely referred the application back to the same member for the making of further findings. Indeed, his Honour expressed doubt that the matters asserted by Ms Gamage constituted "harm" amounting to "persecution" for the purpose of the Convention definition, but noted that it was for the RRT, not his Honour, to determine the matter. 33 In my view, the file probably contained a draft notice of appeal (Federal Court Form 55) from that decision and a form of application for extension of time to file and serve notice of appeal (Federal Court Form 54A) as well, of course, as the copy of Ms Gamage's earlier application to the RRT and she based the document that she brought to the RRT on 14 June on the draft notice of appeal, and is mistaken in thinking that she based it on the copy of the application in the earlier proceeding. This view is supported by the presence of the obliterated words "ON APPEAL from the judgement of his Honour Justice Emmett" on the document that Ms Gamage filed on 15 June to commence this proceeding. Ms Gamage could not have obtained those words from Federal Court Form 56. They would, however, have appeared in a notice of appeal since Federal Court Form 56 contains the words "On appeal from (specify Court or Judge)." 34 However this may be, I accept the testimony of Ms Benson and reject testimony of Ms Gamage that is inconsistent with it. 35 I make the following findings: 1. On the afternoon of Wednesday 14 June 2000 Ms Gamage lodged a notice of appeal against the decision of Emmett J given on 10 December 1999 which did not refer to any decision of the RRT or to s 476 of the Act; 2. Eventually Counter Officer Benson came to appreciate that Ms Gamage wished to apply for an order of review in respect of the RRT's decision that had been notified to Ms Gamage by the RRT's letter dated 17 May 2000; 3. Counter Officer Benson gave Ms Gamage a Federal Court Form 56 and affidavit and invited her to complete the Form 56 within the Registry office; 4. There was ample time remaining before the Registry Office was due to close for Ms Gamage to do so; 5. Ms Gamage felt that it was quite impossible for her to take up Ms Benson's invitation because she had to collect her children from school and had not made, and could not make, alternative arrangements for them to be collected; 6. Ms Gamage took the forms that Counter Officer Benson had given to her home with her; 7. Counter Officer Benson did not assure Ms Gamage that it would be in order for her to lodge the Form 56 application the following day but did say that if Ms Gamage did so, she (Ms Benson) would state that Ms Gamage had attended at the Registry on 14 June. 36 The above findings do not make it necessary for me to rely upon any question of onus in order to resolve the present proceeding, but it is my view that the onus of overcoming the untimeliness of the lodgment of the application on 15 June which commenced this proceeding rests on Ms Gamage and she has not discharged that onus. Conclusion 37 For the above reasons, I uphold the objection to competency and order that the application be dismissed with costs. 38 This result may seem harsh to Ms Gamage. No doubt s 478's denial to the Court of a discretionary power to extend time can work hardship in particular cases. Ms Gamage's prospects of success in an application of review of the RRT's decision signed on 3 May 2000 are irrelevant to the issue that I have had to decide. I note, however, that Ms Gamage's application does no more than refer, without particulars, to the grounds provided for by pars 476(1) (a), (e) and (g) of the Act and that it is not obvious from a reading of the RRT's reasons for decision, without, of course, the benefit of an amendment of the application to include particulars or any submission from counsel, that any of those grounds would be established in this case. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 13 September 2000 Counsel for the Applicants: Mr B Zipser Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: The Australian Government Solicitor Date of Hearing: 7 September 2000 Date of Judgment: 13 September 2000