Sahak v Minister for Immigration & Multicultural Affairs [2001] FCA 998

FEDERAL COURT OF AUSTRALIA

Sahak v Minister for Immigration & Multicultural Affairs [2001] FCA 998 Migration Act 1958 (Cth) Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 MOHAMMAD FAROOQ SAHAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S143 OF 2000 MANSFIELD J ADELAIDE (HEARD IN PORT HEDLAND) 1 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S143 OF 2000

BETWEEN: MOHAMMAD FAROOQ SAHAK

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, Mohammad Farooq Sahak, be granted leave to appeal. 3. The time within which the applicant, Mohammad Farooq Sahak 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 S143 OF 2000

BETWEEN: MOHAMMAD FAROOQ SAHAK

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 are 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 findings. This matter was heard together with Salehi and with the applications of Seyed Mobarak Ali Heidary Sadat, Zarpadeshah Naseri and Ahmad Karimi. 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 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 26 October 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Sahak being notified of the decision, and the reasons for 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 Sahak arrived in Australia on 18 December 1999. On 14 May 2000 he lodged an application for a protection visa under the Act. On 8 August 2000, a delegate of the respondent refused to grant that visa. On 11 August 2000 Mr Sahak applied to the Tribunal to review that decision. On 26 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 Mr Sahak acknowledges that he was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 30 October 2000. Hence, the period of twenty-eight days thereafter by which Mr Sahak was required by reason of s 478(1)(b) to lodge his application for judicial review of the Tribunal's decision, was 27 November 2000. As noted, his application was in fact lodged on 28 December 2000. 5 At about the same time as Mr Sahak was notified of the Tribunal's decision, he received a letter from his lawyer also informing him of that decision. It indicated that that lawyer could no longer act for him, and informed him of his rights to seek review of that decision or to seek review by the respondent under s 417 of the Act. Mr Sahak also completed the pro forma document provided at the notification interview requesting his lawyer to contact him. It was duly sent by Ms Triplett or her officers, and that lawyer also promptly contacted him to confirm she could no longer act for him. He also, on 1 November 2000, applied for legal assistance to the Legal Services Commission of South Australia. On 14 November 2000 he received a letter from that Commission requesting further information. It is unclear from the evidence how he responded to that request. On 28 November 2000 he also sent a facsimile letter to his former lawyer. It was in his native language. I do not know what, if any, response it provided. 6 Mr Sahak also claims to have sent to the respondent's officers shortly after the notification interview a letter in his native language requesting the forms to apply for judicial review of the Tribunal's decision. That letter was sent in response to Ms Triplett, at the notification interview, indicating that the forms were available upon request. I accept that such a letter was sent. It was, as Ms Triplett said, part of the notification interview to invite such a request. The normal process would then have led to that request being translated, and the forms provided to Mr Sahak. He says that that did not occur. I also accept his evidence on that score. 7 In the absence of a response, Mr Sahak claims that he then spoke to Mr Khoshab to chase up a response, and in the period of time up to 27 November 2000 that he spoke to Mr Khoshab almost every day, including with a group of several residents towards the end of that period. In my judgment, that evidence is not reliable. Mr Khoshab was at the Woomera Centre only on 20 November 2000 in the period up to 27 November 2000. Mr Sahak described his communications with Mr Khoshab in a way which left no room for the view that he was mistaken about the person he was speaking to. I did not form the view that Mr Sahak was being deliberately untruthful. In my view, his evidence relates to a period of time in December 2000, rather than in November 2000. It relates to a period of time after the time for making an application for judicial review had already expired. I think that his attribution in the conversation to discussion about that time limit being about to expire, is reconstruction and relates to discussion about the fact that the time limit had already expired and its consequences. Mr Khoshab acknowledged that Mr Sahak and Mr Karimi may each have expressed concern to him on that topic. The occasion for the focus upon Mr Khoshab was, in my view, after 4 December 2000, as by about that time Mr Khoshab had from his discussion with Ms Triplett, formed the view that an extension of time to make an application to the Court may have been possible. 8 I accept Mr Sahak's evidence that in early November 2000 he wrote in his native language to get Ms Triplett to provide him with the forms required to apply to the Federal Court to review the Tribunal's decision. I accept that that request did not come to Ms Triplett's attention. I reject the submission that she deliberately ignored or misplaced it. However, whatever the reason, the normal process for dealing with such a request did not occur. It may be that, until early December 2000, Mr Sahak believed that he needed to take no further action. If he had that belief, it was mistaken and it was not generated by the respondent's officers. In my view, Mr Sahak after making that request, during November 2000, focussed his efforts on securing legal assistance up to the time when the relevant limitation period elapsed. He may have been directed in that way by Mr Mortazav. I am not able to make any finding on that particular issue. I find that from early December 2000 he commenced to inquire of Mr Khoshab about the availability of the necessary forms, but did not get access to them until 14 December 2000 when they were completed with the assistance of Mr Khoshab. Mr Khoshab then promptly gave them to Ms Triplett or her officers, but they were not then lodged with the Court until 28 December 2000. As the application was already out of time by 14 December 2000, it is not necessary to determine the cause of that delay between 14 and 28 December 2000. 9 In the light of those findings, and of my reasons for decision concerning the scope and operation of s 478(1)(b) and (2) of the Act, in my view the application must be dismissed. I so order. To the extent necessary, I give leave to appeal from this decision, and I extend the time within which any appeal may be instituted to 14 September 2001. I make no order as to the costs of the application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.