Isa v Minister for Immigration & Multicultural Affairs [2001] FCA 1002

FEDERAL COURT OF AUSTRALIA

Isa v Minister for Immigration & Multicultural Affairs [2001] FCA 1002 Migration Act 1958 (Cth) Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 HASAN KHALIL ISA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S149 OF 2000 MANSFIELD J ADELAIDE (HEARD IN PORT HEDLAND) 1 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S149 OF 2000

BETWEEN: HASAN KHALIL ISA

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 applicant be dismissed. 2. The applicant, Hasan Khalil Isa, be granted leave to appeal. 3. The time within which the applicant, Hasan Khalil Isa 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 S149 OF 2000

BETWEEN: HASAN KHALIL ISA

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 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 the general findings there made. This matter was heard together with the applications of Vahid Hassanvand, Amir Jelodare Mamaghani, Mohammed Akhtarani and Abbas Adel Bahri. 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 23 November 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of the applicant Hasan Khalil Isa ("Mr Isa") 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 Isa arrived in Australia on 1 February 2000. On 9 July 2000 he lodged an application for a protection visa under the Act. On 28 July 2000, a delegate of the respondent refused to grant that visa. On 8 August 2000 the applicant applied to the Tribunal to review that decision. On 23 November 2000, the Tribunal affirmed the decision of the delegate of the respondent not to grant to Mr Isa a protection visa under the Act. 4 Mr Isa was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 30 November 2000. Hence, the period of twenty-eight days thereafter by which Mr Isa was required by reason of s 478(1)(b) of the Act to lodge his application for judicial review of the Tribunal's decision was 28 December 2000. His application was in fact lodged on 29 December 2000. Mr Isa also received a letter from the lawyer who had assisted him to that stage of the Tribunal's decision, dated 29 November 2000, and that that lawyer would not be able to assist him if he wished to seek review of the Tribunal's decision before the Court. 5 In this instance, the reason why the application was lodged with the Court one day late is clear. It is not the fault of Mr Isa. He did all that he could have been expected to do to make his application in time. Responsibility for the failure to do so lies elsewhere. 6 Frossine Halak ("Ms Halak") was employed in December 2000 at the Woomera Centre as an interpreter for the Arabic language into English and vice versa. In about mid-December 2000, Mr Isa approached Jamal Halak ("Mr Halak"), also an Arabic interpreter at the Centre. He told Mr Halak he wished to apply to the Federal Court to seek review of the Tribunal's decision, and sought the forms necessary to do so. I accept that he, and others, had been asking for those forms at least for some days whenever they had a chance to convey a request through an interpreter to Ms Triplett. That was generally whenever an interpreter passed through the kitchen area where a number of the applicants, including Mr Isa, were working. 7 Mr Halak asked Ms Halak to attend to that request. He gave her the necessary forms. On 16 December 2000, Mr Isa asked Ms Halak for the necessary forms. She told him that she had the forms, and would hold on to them and help him to fill them out. The story is conveniently told in Ms Halak's own words : "15. I have difficulty recalling when I would have obtained the information from the applicant but I believe it would have been before the week leading up to the break before Christmas. I recall that I took the information from the applicant in Arabic before Christmas and then went back with the filled out form to him after Christmas. I recall writing that he was late in making the application because of the Legal Services. I recall him saying that. 16. I do recall telling him to be patient and to wait. I was very busy at the time. I also thought there was a possibility that the Federal Court would grant an extension. If I had been aware that there would be no extension granted then I would have made sure that it would have been done as quickly as possible assuming that I had the time to do it. I never discussed it with anyone in DIMA. I have asked Mr Mehrdad Khoshab, the Farsi Interpreter, about how to fill the forms, and I looked at some appeal forms that he had prepared in other matters and I made some assumptions from those forms that you could ask for an extension of time. I knew that Mehrdad was happy with the other ones he had done so I thought it was okay to ask for an extension of time for Mr Isa's appeal." 8 I accept Mr Isa's evidence that after 15 December 2000, he asked Mr Halak whenever he passed through the kitchen area what was being done about completion of the forms. I find that on a date before Christmas, again in sufficient time for the application to be lodged in a timely way, Ms Halak spoke to Mr Isa and got from him the necessary information to complete the forms for him. He was aware of the twenty-eight day limitation period, and was anxious to come within it. On 28 December 2000, the last day of the twenty-eight day period, he endeavoured to contact Ms Halak to ensure his application was lodged within time. 9 Ms Halak acknowledged that she inserted into his affidavit the reason for the belated application being "the time it took for me to have correspondence with Legal Services Commission" from similar forms held by Mr Khoshab and after discussion with Mr Khoshab. The delay, at least from 15 December 2000, was not for that reason. She simply did not complete the forms for Mr Isa on time because she was so busy and because she believed that an extension of time was possible. 10 Ms Halak said that the steps she took for Mr Isa in relation to completing, and arranging for the execution and lodgment of the application for review and his affidavit were done as part of her duties for the Department of Immigration and Multicultural Affairs. 11 The application was lodged one day late. 12 For the reasons given in Salehi, despite my findings as to why this application is out of time, in my view the Court in the circumstances has no jurisdiction to entertain the application. It must be dismissed. I make no order for costs on the application. As in other matters, to the extent necessary I give leave to appeal from this decision, and I extend the time by which any appeal may be instituted to 14 September 2001.