Adel Bahri v Minister for Immigration & Multicultural Affairs [2001] FCA 999

FEDERAL COURT OF AUSTRALIA

Adel Bahri v Minister for Immigration & Multicultural Affairs [2001] FCA 999 Migration Act 1958 (Cth) Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 ABBAS ADEL BAHRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S150 OF 2000 MANSFIELD J ADELAIDE (HEARD IN PORT HEDLAND) 1 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S150 OF 2000

BETWEEN: ABBAS ADEL BAHRI

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, Abbas Adel Bahri be granted leave to appeal. 3. The time within which the applicant, Abbas Adel Bahri 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 S150 OF 2000

BETWEEN: ABBAS ADEL BAHRI

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 this application, and the general findings concerning it, are set out 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 and with the applications of Vahid Hassanvand, Amir Jelodare Mamaghani, Mohammad Akhtarani and Hasan Khalil Isa. 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. 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 12 October 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Bahri 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 Bahri arrived in Australia on 29 November 1999. On 5 April 2000 he lodged an application for a protection visa under the Act. On 11 July 2000, a delegate of the respondent refused to grant that visa. On 14 July 2000 Mr Bahri applied to the Tribunal to review that decision. On 12 October 2000, the Tribunal affirmed the decision of the delegate of the respondent not to grant to Mr Bahri a protection visa under the Act. 4 Mr Bahri acknowledges that he was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 12 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 9 November 2000. As noted, his application was in fact lodged on 29 December 2000. It was completed and signed on 28 December 2000. 5 This matter is one where the critical date is well before the hunger strike and before the incident involving Mr Summeri. Mr Bahri, upon being notified of the Tribunal's decision, did indicate that he wished to seek review by the Court. I find that on 16 October 2000 he wrote to certain solicitors to act for him. On 27 October 2000, they responded indicating that they were unable to act in this matter. They referred him to the Western Australia Legal Aid Commission. On 30 October 2000 he wrote to the Legal Services Commission of South Australia indicating that he wanted to "appeal" to the Court, and seeking legal assistance to do so. On 8 November 2000 that Commission responded, requiring him to complete an application for legal assistance. He was provided with that form, I infer through Ms Triplett, and completed it on 9 November 2000. Unfortunately the twenty-eight day period expired on that day. 6 Mr Bahri claimed in evidence that in addition to those steps, he also sought from the respondent's officers the forms needed to seek review of the Tribunal's decision by the Court. He identified Mr Khoshab as the person through whom that request was made, and claimed that he participated in the hunger strike in late November 2000 because he had not received those forms. I have given careful consideration to his evidence. I am not persuaded that he made the inquiries of Mr Khoshab to which he referred prior to 9 November 2000. Within a few days of his notification interview, he may have completed the pro forma document provided at that interview by which he requested the solicitor who had acted for him at the Tribunal to contact him. He referred to a letter to Ms Triplett of 13 October 2000, but I find that it was probably that pro forma document. The correspondence with the Legal Services Commission of South Australia does not refer to any parallel steps being taken by him to secure the necessary forms, and there is no other independent confirmation of such a letter or of other oral requests made in the period to 9 November 2000. I consider also that the tenor of his general evidence suggested communications to Ms Triplett through Mr Khoshab in late November or in December 2000 rather than earlier. By that time, as I have found, the issue of procuring the necessary forms through Ms Triplett was a very live one among a number of residents at the Woomera Centre. 7 In my judgment, whilst Mr Bahri did act sensibly and promptly in relation to seeking legal assistance to apply to review the Tribunal's decision, he did not in any formal sense until some time after 9 November 2000 seek from Ms Triplett the forms needed to enable him to apply to the Court. In this case, in respect of the relevant period to 9 November 2000, Ms Triplett or her officers assisted him by sending his requests for legal assistance. But I do not find that they failed to respond to any request he made, through Mr Khoshab, for the forms needed to enable him to seek review by the Court in the period up to 9 November 2000. 8 In the light of my consideration of s 478(1)(b) and (2), this application in the circumstances must be dismissed. I so order. The findings in this matter do not leave room for any suggestion that the conduct of the respondent's officers directly caused or contributed to this application being out of time. However in the light of the difficulties caused by being in a remote location without any real resources, and to treat Mr Bahri consistently with the other applicants, to the extent necessary I give leave to appeal from this decision. I also extend the time by which any appeal may be instituted to 14 September 2001. I make no order as to costs of this application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.