FEDERAL COURT OF AUSTRALIA Brahim v Minister for Immigration & Multicultural Affairs [2000] FCA 1701 COSTS – usual order waived because of unsuccessful applicant's apparently desperate humanitarian situation. Nouredine v Minister for Immigration & Multicultural Affairs (1999) 91 FCR 138, cited HACHI BRAHIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N1048 of 2000 MADGWICK J 16 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1048 of 2000 BETWEEN: HACHI BRAHIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 16 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for review of the decision of the Refugee Review Tribunal of 14 October 1999, be dismissed. 2. The applicant is to pay the respondent's costs incurred after 5 November 2000. 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 N1048 OF 2000 BETWEEN: HACHI BRAHIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MADGWICK J DATE: 16 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from transcript) HIS HONOUR: 1 This is an application for judicial review of a decision by the Refugee Review Tribunal ("the Tribunal") affirming the decision of a delegate of the respondent Minister to not grant the applicant a protection visa. Time limit on applications for review by the Court 2 The decision of the Tribunal was given on 14 October 1999 and it is crystal clear that the applicant had actually been notified of that refusal no later than 9 November 1999. The application for review by this Court was not filed until 29 September 2000, long after the expiration of the 28 day limitation period provided for by s 478(1)(b) of the Migration Act 1958 (Cth) ("the Act"). 3 The Court is specifically prevented by the Act from doing anything to ameliorate the position of an applicant who is late in coming to the Court. I regret, therefore, that the Court has no power to enter into a consideration of the legal merits of the Tribunal's decision and the application of the applicant must be dismissed. 4 An application has been made for costs by the respondent Minister which forces me to say something about the broader circumstances of the case. Background 5 The applicant is an Algerian national of Berber ethnicity and culture. He seems to have been something of an activist in the cause of greater self-determination for Berber people. The Tribunal decision from which he has sought to appeal to this Court represented the second consideration of the matter by the Tribunal. The first consideration was found to be legally defective by Tamberlin J in earlier proceedings. Although the applicant was unsuccessful before the Tribunal on his second foray there, because the Tribunal felt that he faced no real chance of persecution from militant fundamental followers of Islam, the Tribunal went on to accept that the applicant genuinely fears a return to Algeria. Indeed, the Tribunal said that it: "… accepts that the applicant has left his home and family, and is desperate not to return to Algeria." 6 The Tribunal noted that Australia's own Department of Foreign Affairs and Trade had reported, in May 1999, that the Algerian security situation is among the worst worldwide and that in addition to the problems with Islamic militants the Algerian government itself "is committing crimes against civilians". Despite some indications of an improvement since 1997 the Tribunal expressed the clear opinion that: "… it is too soon to conclude that Algeria will, in the reasonably foreseeable future, improve substantially for the better in either the conduct of the government or of the Islamic rebels in Algeria." 7 The Tribunal mildly concluded: "Given the state of Algeria, the Tribunal notes that the applicant's case appears to raise humanitarian issues." 8 The applicants then legal advisers, the Legal Aid Commission of New South Wales, had correspondence with the Minister seeking a humanitarian determination under s 417 of the Act. The costs application is supported by counsel for the Minister upon the basis that it is inconceivable that there was not then a conscious decision by the applicant legally advised to go down the s 417 road of seeking the Minister's humanitarian consideration of the matter, rather than down the road of seeking judicial review of the Tribunal's second decision. That is probably a correct conclusion. 9 However, the applicant has never been given reasons that he would understand as to why the Minister has declined to help him under s 417, and I must say the matter remains a mystery to me too. After these representations on his behalf (and other representations seeking humanitarian intervention by the Minister) were rejected, the applicant appealed to this Court. 10 The applicant comes from a francophone culture in which the curial system is inquisitorial not adversarial. Despite what must have been his legal advice, he has approached this Court in desperation begging that there may be, as he puts it, some "solution" to his plight. Under the prevailing RRT Review Cases Legal Advice Scheme, beneficially available to the applicant, he had actual legal advice that his appeal to this Court was hopeless. However, he may not have received that advice until 5 November 2000. 11 The applicant with great frankness has put that advice before the Court. It appears from it that it is counsel's opinion that the only chance the applicant may have is to approach the United Nations Commission Against Torture seeking to vindicate Australia's obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, not to return a person to another State where there are substantial grounds for believing he or she would be in danger of torture, as defined in that Convention. The Convention gives an extended meaning to the term torture. 12 Counsel who provided the advice to the applicant and who appears to have some experience in such matters concluded: "This is another example of the grossly unfair operation of the protection system in Australia. It is well- known that conditions in Algeria are extremely dangerous for any deportee; yet the so-called safety net of Ministerial intervention under s 417 has failed to provide any protection to Mr Hachi. In my view, there is no possibility of Mr Hachi succeeding in the current Federal Court proceeding; nor are there any remaining alternative procedures under Australian law which would enable him to remain in Australia. The only possibility which in my view will be opened to Mr Hachi would be a communication to the [UN Committee Against Torture]. However, given the current attitude of the Australian Government towards UN treaty bodies, his prospects of succeeding in this arena are slim indeed." Costs 13 As a matter of law it seems to me that it would go beyond any judicial discretion to fail to order that the applicant pay any costs of the Minister incurred after 5 November when the applicant had this final advice from a plainly sympathetic barrister and, it may be inferred, it was in the nature of a second opinion consequent on earlier legal advice that he had. However, it would in the circumstances, in my opinion, be quite wrong to order the applicant to pay the Minister's costs up to that point. He approached the Court as a matter of last resort, following both encouragement from the Tribunal to think that the Australian system might, after all, do something for him and an absence of an explanation as to why the respondent Minister would not exercise his powers in the applicant's favour. It is not to the present point that the Minister may (I need not decide such a question) have had no duty to publish reasons for his approach to the applicant's representations. The applicant's motivations are relevant and I think, up to 5 November 2000, a decisive matter in the circumstances: see, for example, Nouredine v Minister for Immigration & Multicultural Affairs (1999) 91 FCR 138. Disposition 14 The application is dismissed and the applicant is to pay the respondent's costs incurred after 5 November 2000. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 23 November 2000 Applicant appeared in person Counsel for the Respondent: D Jordan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 16 November 2000 Date of Judgment: 16 November 2000