FEDERAL COURT OF AUSTRALIA "H" v Minister for Immigration and Multicultural Affairs [2001] FCA 43 MIGRATION – appeal from decision dismissing an application for an order for review of a decision of the Refugee Review Tribunal – application out of time – whether Court has jurisdiction to entertain application. Migration Act 1958 (Cth) s 478 Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 followed Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 followed Nirmalan v Minister for Immigration and Multicultural Affairs (unreported, Full Court of the Federal Court, 14 May 1998) followed Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 followed Pannasara v Minister for Immigration and Multicultural Affairs [2000] FCA 213 followed Radhi v Minister for Immigration and Multicultural Affairs [2000] FCA 777 followed Bariah v Minister for Immigration and Multicultural Affairs [2000] FCA 1253 followed "H" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N1254 OF 2000 WILCOX, WEINBERG & CONTI JJ 5 FEBRUARY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1254 OF 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: "H" APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WILCOX, WEINBERG and CONTI JJ DATE OF ORDER: 5 FEBRUARY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal to this Court. 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 N1254 OF 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: "H" APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WILCOX, WEINBERG and CONTI JJ DATE: 5 FEBRUARY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT Background 1 This is an appeal from an order of a judge of the Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming the refusal by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to grant the appellant a protection visa. 2 The appellant is an Algerian national of Berber ethnicity and culture. For reasons which will become apparent it is not necessary to set out in any detail his account of his experiences in Algeria before arriving in Australia. It is sufficient to say that he appears to have been something of an activist in the cause of greater self-determination for Berber people. He claimed that he had participated in demonstrations that were intended to create an awareness of Berber culture and language. He also claimed that immediately prior to his departure from Algeria he had been robbed by armed Islamic fundamentalists who had demanded the payment of a large sum of money from him to support their cause, and had threatened to return and kill him if that money was not forthcoming. He claimed more generally that if he were required to return to Algeria he would face torture and detention without trial, as well as persecution by Islamic fundamentalists. The Tribunal's findings 3 In its reasons for decision given on 14 October 1999 the Tribunal expressed some reservations as to the credibility of certain of the appellant's claims. Nonetheless, it was prepared to give the appellant the benefit of the doubt regarding his involvement in Berber cultural groups and in demonstrations on behalf of the Berber cause. However, the Tribunal rejected the appellant's claim of having been repeatedly detained by the authorities because of these activities, and it rejected too his claim that he had been robbed by Islamic fundamentalists. The Tribunal concluded that any robbery which had taken place had not been shown to have been linked to any such political group. 4 The Tribunal accepted that the appellant genuinely feared a return to Algeria. Indeed the Tribunal observed that it: "… accepts that the applicant has left his home and family and is desperate not to return to Algeria." 5 However, the Tribunal rejected the appellant's claim to refugee status. It concluded that he faced no "real chance of persecution" for a Convention reason from any government authorities or from any militant fundamental followers of Islam. 6 In arriving at that conclusion, the Tribunal took into account the "country information" before it to the effect that "the Algerian security situation is amongst the worst worldwide" and that "in addition to the problems with Islamic militants, the government itself in Algeria is committing crimes against civilians". Despite some indication of an improvement in conditions in Algeria since 1997, the Tribunal observed 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 concluded that given the state of affairs in Algeria, the appellant's cause appeared to raise "humanitarian issues". It recognised, however, that its role was limited to determining whether the appellant satisfied the criteria for a protection visa, and that humanitarian considerations, outside these criteria, were a matter to be dealt with by the Minister. The application for judicial review of the Tribunal's findings 8 The appellant was notified of the decision of the Tribunal rejecting his application for a protection visa by no later than 9 November 1999. However, he did not file his application for review by this Court until 29 September 2000, more than nine months after the twenty-eight day limitation period provided for by s 478(1)(b) of the Migration Act 1958 (Cth) ("the Act"). 9 In these circumstances the primary judge concluded that the Court was specifically prevented by the Act from dealing with the application for judicial review. His Honour concluded, with regret, that the Court had no power to enter into a consideration of the legal merits of the appellant's claim, and that the application for judicial review must therefore be dismissed. 10 It is appropriate to note the primary judge then dealt with an application by the Minister that the appellant pay the costs of the proceedings. That application was supported upon the basis that the appellant, through his then legal advisers, the Legal Aid Commission of New South Wales, had made a conscious decision to request the Minister to make a humanitarian determination under s 417 of the Act in his favour before seeking judicial review of the Minister's decision. Having made that election, the Minister submitted, the appellant should be responsible for the costs thrown away by reason of his having subsequently made an application for judicial review which could not, in any circumstances, be entertained. 11 The primary judge observed that the appellant had only instituted his application for judicial review after the Minister had declined to assist him under s 417 of the Act. The Minister had provided no reasons for his decision to reject the appellant's request pursuant to that provision. The primary judge characterised the Minister's decision as "a mystery". 12 His Honour noted that the appellant came from a francophone culture in which the curial system was inquisitorial and not adversarial. In spite of the legal advice given to him, the appellant approached this Court in desperation, begging that there may be, as he put it, some "solution" to his plight. His Honour further noted that the appellant had, with great frankness, placed before the Court the advice that he had received on 5 November 2000 confirming that there was no possibility of his succeeding in the current Federal Court proceeding. Nonetheless, the appellant had proceeded with his application which was heard on 16 November 2000. In those circumstances it was impossible to resist the conclusion that the Minister was entitled to be paid his costs as from 5 November 2000. However, his Honour decided that the appellant ought not be required to pay the Minister's costs up to that point. His Honour said: "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 and Multicultural Affairs (1999) 91 FCR 138." 13 His Honour then ordered that the application be dismissed and that the appellant pay the Minister's costs incurred after 5 November 2000. The appeal to this Court 14 As was the case below, the appellant was not legally represented before this Court on the appeal. For that reason, we have given careful consideration as to whether this Court is able to entertain any complaint arising out of the Tribunal's decision to reject his application for a protection visa. As both the Tribunal and the primary judge accepted, his situation evokes humanitarian concern and a substantial measure of sympathy. 15 However, as the primary judge concluded, it has been determined authoritatively that by reason of the operation of s 478 of the Act there is no power in this Court to extend the time within which an application for judicial review against a decision of the Tribunal may be brought: see for example Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; Nirmalan v Minister for Immigration and Multicultural Affairs (unreported, Full Court of the Federal Court, 14 May 1998); Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612; Pannasara v Minister for Immigration and Multicultural Affairs [2000] FCA 213; Radhi v Minister for Immigration and Multicultural Affairs [2000] FCA 777; and Bariah v Minister for Immigration and Multicultural Affairs [2000] FCA 1253. 16 In these circumstances the only order which this Court can make is that the appeal be dismissed. It is impossible to avoid the conclusion that the appellant must pay the costs of the appeal to this Court. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 5 February 2001 Counsel for the Appellant: Appellant appeared in person. Counsel for the Respondent: Mr D Jordan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 5 February 2001 Date of Judgment: 5 February 2001