FEDERAL COURT OF AUSTRALIA Heidary Sadat v Minister for Immigration & Multicultural Affairs [2001] FCA 997 Migration Act 1958 (Cth) Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 SEYED MOBARAK ALI HEIDARY SADAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S140 OF 2000 MANSFIELD J ADELAIDE (HEARD IN PORT HEDLAND) 1 AUGUST 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S140 OF 2000 BETWEEN: SEYED MOBARAK ALI HEIDARY SADAT APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 1 AUGUST 2001 WHERE MADE: ADELAIDE (HEARD IN PORT HEDLAND) THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant, Seyed Mobarak Ali Heidary Sadat, be granted leave to appeal. 3. The time within which Seyed Mobarak Ali Heidary Sadat may appeal be extended to 14 September 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S140 OF 2000 BETWEEN: SEYED MOBARAK ALI HEIDARY SADAT APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 1 AUGUST 2001 PLACE: ADELAIDE (HEARD IN PORT HEDLAND) REASONS FOR JUDGMENT 1 The background to, and general findings concerning this application is explained in the reasons for decision in the matter of Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995, ("Salehi"). I will not repeat that background or those general findings. This matter was heard together with the matter of Salehi and with the applications of Mohammad Farooq Sahak, Ahmed Karimi and Zarpadeshah Naseri. The evidence given in each of those matters prior to the date of the order to that effect was also ordered to be treated as evidence in this matter. I will also adopt in these reasons the definitions used in Salehi. 2 The issue now before the Court is whether the application for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") given on 24 October 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Sadat being notified of the decision of the Tribunal affirming the decision of a delegate of the respondent not to grant him a protection visa under the Migration Act 1958 (Cth) ("the Act"). The respondent, by his notice of objection to competency, contends that the application was lodged too late, and that by virtue of s 478 of the Act, it must now be dismissed. 3 Mr Sadat arrived in Australia on 20 December 1999. On 17 May 2000 he lodged an application for a protection visa under the Act. On 24 August 2000, a delegate of the respondent refused to grant that visa. On 30 August 2000 the applicant applied to the Tribunal to review that decision. On 24 October 2000, the Tribunal affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa under the Act. 4 The applicant acknowledges that he was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 24 October 2000. Hence, the period of twenty-eight days thereafter by which the applicant was required by reason of s 478(1)(b) to lodge his application for judicial review of the Tribunal's decision was 21 November 2000. As noted, his application was in fact lodged on 28 December 2000. 5 In this instance, the critical period is earlier than in most of the applications. The focus is upon ascertaining why Mr Sadat did not lodge his application for judicial review by 21 November 2000. The events subsequent to that date, referred to in the general findings in Salehi, are not of significance. 6 Ms Triplett had the practice of telling residents of the Woomera Centre when notifying them of the decision of the Tribunal, that the visa applicant could ask her for the forms required to seek judicial review of the decision. In fact, until 4 December 2000, she did not have the forms readily to hand. 7 Mr Sadat was told that by Ms Triplett. Within seven days of 24 October 2000, I accept that he wrote a letter seeking the necessary forms. The letter was in Farsi or Dari. It was written for him by another resident named Qazi, as Mr Sadat is not able to write. I find that that letter was sent through one of the staff at the Woomera Centre to Ms Triplett, and in the proper course would have been translated and the requested forms would have been procured and provided to Mr Sadat. That did not happen. I am unable to make any finding as to where in the process the normal course failed. I further accept that, several days later, as he had had no response, Mr Sadat submitted a further written request in much the same terms to Ms Triplett. It was not met. Again, in the circumstances, I am unable to find as to why the normal process did not occur. I accept Ms Triplett did not come to appreciate that a request in the terms referred to had been made. Neither letter was produced at the hearing. 8 Mr Sadat described then how he pestered Mr Khoshab for the forms. I do not accept that he pestered Mr Khoshab as he described in the period up to 21 November 2000, although he may have done so thereafter. It is not necessary to make any findings in his case about communications with Mr Khoshab after 21 November 2000. The causes of any delay after that date are unimportant for present purposes. Mr Khoshab was absent from Woomera Centre between 3 and 20 November 2000, and I do not think that it is likely that he would have been pestered by Mr Sadat in the period up to 2 November 2000 as that period of nine days or so is one during which Mr Sadat is likely to have awaited a response to his letters without then undue concern. 9 Consequently, I do not accept Mr Sadat's claims that he spoke to Mr Khoshab on about 11 and 13 November 2000 requesting the necessary forms. He did not suggest that he made that request of any other interpreter, including Mr Mortazav. I regard his evidence as unreliable in that regard. I have considered whether I should accept his evidence about his two letters to Ms Triplett in the light of that concern and in the light of the erroneous reference in his letter of 27 March 2001 to the Court in the nature of a submission that he received the relevant forms on 14 December 2000 rather than 28 December 2000 as he said in his evidence. I accept that that letter of 27 March 2001 was a "pro forma" prepared for him and others, and I do not consider that that error taints the overall effect of his evidence. 10 In the result, as indicated above, I have accepted that evidence. He impressed me as a witness desiring to tell the truth. The two letters to Ms Triplett would have been consistent with her standard invitation to make such requests in accordance with her notification interview practice. His description of the preparation and sending of those letters was cogent. He also actively pursued other avenues to try to seek review by the Court of the Tribunal's decision. Mr Sadat was, by letter from his solicitor of 30 October 2000, advised to seek review of the Tribunal's decision and was directed to "Legal Aid of South Australia". He wrote to the Legal Services Commission of South Australia on 1 November 2000, and received a response dated 14 November 2000 requesting that he sent copies of relevant documents. It is not clear how he responded. On 30 November 2000 he sought to contact his former solicitors, and on his behalf on 14 December 2000 they sent a request to the respondent under s 417 of the Act. 11 In my judgment, there was little more that Mr Sadat could have done in his circumstances to make his application in time. Apart from seeking legal assistance in a timely manner, he requested the necessary forms from Ms Triplett as he had been advised to do, but he did not receive those forms despite repeating that request. It is unclear what other steps he took to follow up those requests in the period from early November to 21 November 2000. 12 However, for the reasons given in Salehi, those findings do not enable the Court to entertain this application. In my judgment the wording of s 478(1)(b) and (2) is intransigent. I must dismiss the application. To the extent that it is necessary, I give leave to appeal from this decision and I extend the time by which any appeal may be brought to 14 September 2001. I make no order for costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 27 July 2001 Applicant appeared in person Counsel for the Respondent: Ms Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 5 and 6 June 2001 Date of Judgment: 1 August 2001