Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535

FEDERAL COURT OF AUSTRALIA Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535

MIGRATION – notice of objection to competency – facsimile sent by Australian Correctional Management staff at detention centre on behalf of applicant was sent to the wrong fax number and arrived at Federal Court out of time – Court has no jurisdiction to extend time irrespective of the merits of an application for extension

Migration Act 1958 (Cth) ss 478(1)(b), 478(2), 256, 476(1)(a) Hong v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468 cited Hocine v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 269 cited Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672 cited Le v Minister for Immigration & Multicultural Affairs (1994) 53 FCR 27 cited SONGUL KUCUK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 141 OF 2001 HELY J 10 MAY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 141 OF 2001

BETWEEN: SONGUL KUCUK

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 10 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The objection to competency be upheld.

2. The Application for an Order of Review is dismissed as the Court lacks jurisdiction to entertain it.

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 141 OF 2001

BETWEEN: SONGUL KUCUK

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 10 MAY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Section 478(1)(b) of the Migration Act 1958 (Cth) ("the Act") provides that an application for review by the Federal Court of a decision of the Refugee Review Tribunal ("RRT") must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. An application is lodged with the Court when it is physically deposited with the Court, or when it comes into possession of the Court by some other means, including facsimile transmission: Hong v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468. 2 Section 478(2) provides: "(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 filing of an application within the time limit imposed by s 478(1)(b) is a condition of this Court's jurisdiction to entertain the application. Section 478 of the Act is constitutionally valid: Hocine v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 269. Full Court authority confirms that s 478(2) means what it says, and the Court has no jurisdiction to extend time irrespective of the merits of an application for an extension: Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672; Hocine (supra) at [41]. 3 In the present case, on 18 December 2000 RRT affirmed a decision of the Minister's delegate not to grant a protection visa to the applicant, and published its reasons for that decision. The evidence establishes that the applicant was notified of that decision on 19 December 2000 by being given a copy of it, as well as letters from RRT and Department of Immigration & Multicultural Affairs ("DIMA") in relation to the decision and the possibility of review of that decision in this Court. 4 The 28 day period allowed by s 478 of the Act for the lodgment of an application for review with this Court expired on 16 January 2001. The Application for an Order of Review, although dated 22 December 2000, was not lodged with this Court until sent by facsimile transmission on 16 February 2001, well outside the time allowed by s 478. That was as a result of a peculiar set of circumstances to which it will be necessary to return. 5 On 22 February 2001 the respondent filed a Notice of Objection to Competency by which the Minister objected to the jurisdiction of this Court to try the application on the grounds that the application was not lodged within the period prescribed by the Act. It is that objection to competency which is now before me for determination. 6 On 19 December 2000, and at all times since that date, the applicant has been in immigration detention in Stage 2 of the Villawood Detention Centre. That Centre is managed by Australian Correctional Management Pty Ltd ("ACM") under contract, although the precise relationship between ACM and DIMA was not established by the evidence. Without making any concession, counsel for the Minister put his submissions on the basis that it was not material to distinguish between ACM and the respondent, and I shall proceed on that basis. 7 The applicant is a citizen of Turkey, who does not speak the English language. The solicitor who acted for her in connection with the RRT proceedings declined further involvement after RRT's decision went against the applicant. On 21 December 2000 the applicant sought the assistance of Judy Hilaney, a DIMA officer, in the completion of her Federal Court application form. Ms Hilaney, through an interpreter, advised that she could not assist, but named some organisations from which the applicant could seek assistance. I do not suggest that there was anything improper in the approach which Ms Hilaney took. 8 The applicant says that she obtained assistance from a fellow detainee to complete an Application for an Order of Review. According to her oral evidence, which I accept, on 22 December 2000 the applicant took the completed form to the ACM office in the Detention Centre and asked for it to be faxed to the Federal Court. 9 There is evidence that detainees at Villawood are not permitted to use the fax machines, but staff at the Detention Centre will fax documents on behalf of a detainee if requested. When ACM staff fax a document on behalf of a detainee, the practice is for details of the fax to be entered into a log book known as the "Mail Log Book". The details that are entered include the date and time of the fax transmission, the name of the detainee, the type of document to be faxed and the fax number to which the document is sent. According to the respondent's evidence, the ACM officer will not fax a document unless the detainee has provided the number to which the document is to be faxed. 10 The Mail Log Book does not contain any entry that a fax was sent on behalf of the applicant on 22 December 2000. However, the applicant has produced (Exhibit 1) a fax confirmation report of that date, endorsed with a notation on the top of the first page of a form of Application for an Order of Review, that a four page document was successfully transmitted to telephone number 9644 1184 at 10.40 on 22 December. The form of Application for an Order of Review is four pages long, and I infer that it was that form which was the subject of the fax transmission. 11 9644 1184 is the number for a fax machine in Stage 1 of the Detention Centre. The applicant gave evidence, which I accept, that she did not provide this number to the ACM officer; she requested that the document be sent to the Federal Court. Her evidence was that she did not know anybody in Stage 1 of the Detention Centre, and that she had not enlisted the assistance of anybody in Stage 1 in connection with her Federal Court Application. 12 The practice of making an entry in the mail book was not followed on this occasion. If there was a practice of requiring the detainee to nominate the number to which a fax transmission was to be sent, then I am not satisfied that this practice was followed on this occasion either. On the evidence, the applicant had every reason to have the document transmitted to the Federal Court and none for having it transmitted to Stage 1. It is at least theoretically possible that the detainee who assisted in the completion of the form, or someone else, supplied the applicant with the wrong telephone number which she relayed to the ACM officer. But I think this is unlikely. The applicant denied that this was so, and I accept her denial. I accept the applicant's evidence that she asked for the document to be faxed to the Federal Court. Through some error for which the applicant is not responsible, this did not occur. 13 The applicant expected to receive some acknowledgment of her application from the Federal Court. By 8 January 2001 no such acknowledgment had been received, so she returned to the same place to send the document again. She handed the four page document, and the copy of the first page bearing the transmission report, to an ACM officer, who told her that the fax was not working. Exhibit 2 is a transmission confirmation report of 8 January 2001 which records that at 16.26 an attempted transmission to 9644 1184 was not effected because the line was busy. However, the Mail Log Book for that date records that at 17.16 an officer by the name of Herps effected a transmission of a legal document on behalf of the applicant to 9644 1184. 14 I am satisfied that once more, and again within time, the applicant sought to transmit her application for review to the Federal Court, and once more it was sent by her gaolers to Stage 1 of the Detention Centre. Why the recipient(s) of the faxes in Stage 1 did not enquire what was going on is not apparent on the evidence. The identity of the officer who transmitted the first fax is not known. The second fax was transmitted by an officer named Herps who was not called to give evidence. It is possible that he understood or misunderstood the applicant's request as being a request to send the documents again to the same place. The applicant's evidence as to the request which she made in relation to the second fax was less explicit then in relation to the first. 15 On 16 February 2001 the applicant was advised by a DIMA officer, Ali Erem, that the applications had been sent to the wrong fax number. The correct number, apparently 9230 8535 (see the notation on Exhibit 1), was identified, and the documents were then sent to the Court. 16 I have not considered the "merits" of the Application for an Order of Review, because they have not been argued and the jurisdictional threshold must first be passed. But it is impossible not to feel sympathy for the applicant having regard to the plight in which she now finds herself. I do not find that there was any deliberate attempt on the part of ACM or DIMA officers to frustrate the applicant's desire to seek a review of RRT's decision in this Court. In particular, Ms Hilaney went to some lengths in an attempt to assist the applicant. But I am satisfied that at least on 22 December 2000, and perhaps again on 8 January 2001, the applicant made a specific request of an ACM officer to transmit her review application to the Federal Court, which request, for some unexplained reason, miscarried. Thus she "is out of time", and absent some intervention on the part of the Minister, I assume that she will be returned to Turkey without any review of RRT's decision. 17 The terms of the statute and a line of authority establish that I have no power to grant an extension of time irrespective of the justice of doing so in the circumstances of the particular case. 18 Section 256 of the Act provides: "Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention ... afford to him or her all reasonable facilities ... for taking legal proceedings in relation to his or her immigration detention." 19 Section 256 was, as s 41, one of the original sections of the Act. Portions of the second reading speech of 1 May 1958 are quoted by Sheppard J in Le v Minister for Immigration & Multicultural Affairs (1994) 53 FCR 27 at 33. It may be open to doubt whether the present proceedings are in relation to the applicant's immigration detention – as the proceedings do not seek to challenge that detention. The applicant was not legally represented, and the point was not argued. I prefer not to decide the point without the benefit argument brings, even though counsel for the Minister very fairly attempted both to set up as well as to knock down arguments that might be put in support of the applicant's case. 20 Assuming that the proceedings can be so characterised, there are two further problems in the applicant's path. First, the evidence is that ACM did provide a facility for transmitting Applications for Review to the Federal Court. The fact that a mistake was made, or an error occurred in the operation of the facility does not of itself lead to a conclusion that there has been a failure to comply with s 256. Second, and more importantly, even assuming a failure on the part of the Minister to comply with s 256, s 478 nonetheless operates in accordance with its terms. Particularly given the history of the legislation, there is no room for an implication that the operation of s 478 is in some way conditional upon compliance with s 256. Nor is s 256 aptly described as a procedure required by the Act to be observed in connection with the making of RRT's decision in terms of s 476(1)(a). Section 256 has nothing to do with RRT. The case cannot otherwise be brought within Part 8 of the Act, and the only jurisdiction which this Court has in relation to RRT's decision is that conferred by Part 8. 21 For these reasons the objection to competency must be upheld and the application dismissed as incompetent.