Naseri v Minister for Immigration & Multicultural Affairs [2001] FCA 1003

FEDERAL COURT OF AUSTRALIA

Naseri v Minister for Immigration & Multicultural Affairs [2001] FCA 1003 Migration Act 1958 (Cth) Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 ZARPADESHAH NASERI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S141 OF 2000 MANSFIELD J ADELAIDE (HEARD IN PORT HEDLAND) 1 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S141 OF 2000

BETWEEN: ZARPADESHAH NASERI

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, Zarpadeshah Naseri, be granted leave to appeal. 3. The time within which the applicant, Zarpadeshah Naseri 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 S141 OF 2000

BETWEEN: ZARPADESHAH NASERI

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 material. This matter was heard together with Salehi, and with the applications of Heidary Sadat, Ahmed Karimi and Mohammad Farooq Sahak. The evidence given in each of those matters prior to the date of the order to that effect was 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 31 October 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Naseri 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 Naseri arrived in Australia on 26 January 2000. On 24 May 2000 he lodged an application for a protection visa under the Act. On 14 July 2000, a delegate of the respondent refused to grant that visa. On 19 July 2000 the applicant applied to the Tribunal to review that decision. On 31 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 Naseri acknowledges that he was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 6 November 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 4 December 2000. As noted, his application was in fact lodged on 28 December 2000. 5 On 8 November 2000, Mr Naseri requested the respondent's officers in writing to assist him to obtain legal advice to help him with his proposed application to review the Tribunal's decision. He also completed on that day the form provided to him when notified of the Tribunal's decision which requested the lawyer who had acted for him to that time to contact him. That request was sent to that lawyer by Ms Triplett's officers on 9 November 2000. A further document from Mr Naseri apparently in Pushto and dated 13 December 2000 was sent to that lawyer on 18 December 2000. 6 Mr Naseri claims that, at the notification interview on 6 November 2000, he signed a document indicating that he wished to seek review of the Tribunal's decision by application to the Court. I am satisfied that that is the document dated 8 November 2000 requesting his lawyer to contact him. That document is a pro forma document proffered to residents at the time they are notified of the Tribunal's decision. If that person wishes to seek review of the Tribunal's decision, it may be filled out. It informs the lawyer concerned of the Tribunal's decision, and requests that lawyer to arrange to speak to the particular visa applicant. It would readily be understood as a document signifying a desire to seek review of the Tribunal's decision. I accept also that he sought legal assistance in a timely manner. 7 He claims that thereafter he sought the forms necessary to apply to the Court but was told that they were not available, until they were provided to him by Mr Khoshab on about 15 December 2000. I accept that Mr Naseri did pursue the forms necessary to apply to the Court from Mr Khoshab at some time prior to 15 December 2000. However, I am not satisfied that he did so prior to 4 December 2000. In his case, there is no clear evidence of any such persistent inquiries prior to that date, nor any event in which he was involved which would have prompted such inquiries at a particular time prior to 4 December 2000. His principal, and continuing concern is that he has not been provided with a Pushto interpreter in his dealings with the Tribunal or subsequently (until this hearing). 8 The application and affidavit were completed and signed on that day, and given to Ms Triplett or placed in her green folder either on that day or the succeeding day. They were not sent to the Court until 28 December 2000, but the delay between 15 and 28 December 2000 is unimportant as the application was already out of time. 9 In the light of those findings, and in the light of my consideration of s 478(1)(b) and (2) of the Act in Salehi, in my judgment this application must be dismissed. To the extent necessary, I give leave to appeal from this decision, and I extend the time within which any such appeal may be brought to 14 September 2001. I make no order as to the costs of this 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.