Ozturk v Minister for Immigration & Multicultural Affairs [2001] FCA 1006

FEDERAL COURT OF AUSTRALIA

Ozturk v Minister for Immigration & Multicultural Affairs

[2001] FCA 1006

MIGRATION – application for review – objection to competency of the Court – whether application filed more than twenty eight days after notification of decision of Refugee Review Tribunal – whether notification

Migration Act 1958 (Cth) ss 430D, 478(1)(b)

Migration Regulations reg 5.02

Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 referred to Hussaini v Minister for Immigration & Multicultural Affairs [2001] FCA 790 referred to

MEHMET OZTURK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 578 OF 2001 GYLES J SYDNEY 31 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 578 OF 2001

BETWEEN: MEHMET OZTURK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 31 JULY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Notice of Objection to Competency be allowed. 2. The application be dismissed. 3. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 578 OF 2001

BETWEEN: MEHMET OZTURK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 31 JULY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The respondent Minister for Immigration and Multicultural Affairs has filed a Notice of Objection to Competency pursuant to O 54B r 3 of the Federal Court Rules in the following terms: "The Respondent objects to the jurisdiction of this Court to try this application for an order of review under Part 8 of the Migration Act 1958 (the "Act") on the ground that subsection 478(1)(b) of the Act provides that an application for review must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision." 2 I am satisfied that the application for an order of review was received by the Court on 10 May 2001. It appears that an earlier attempt to send an application to the Court failed because it was faxed by an officer at the Villawood Detention Centre to the facsimile number of the Korean Consulate in Sydney. As appears from the decision of Hely J in Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 ("Kucuk"), nothing can be done about that. It does seem that there is a systemic problem at the Detention Centre in relation to sending documents to the Court, with potentially adverse results for inmates of the Detention Centre if these two cases are any guide. 3 The facts as to notification of the Refugee Review Tribunal's ("the Tribunal") decision in relation to which review is sought are as follows. On 4 April 2001 an officer of the Tribunal forwarded a facsimile to: "DIMA Representative Villawood Detention Centre" which, omitting formal parts, was as follows: "Please find attached a copy of the Notice of Decision letter and decision on the application by the above named. Please hand this facsimile cover sheet, the letter and decision to Mr Ozturk immediately." Forwarded with that message was a copy of a letter of 4 April 2001 from the Deputy Registrar of the Tribunal, advising of the decision to refuse the applicant a protection visa, which, in turn, enclosed a copy of the decision and the s 430 statement of reasons of the Tribunal, the decision having been made on and the reasons being dated 3 April 2001. 4 The facsimile was received by Mr Greg Mitchell, an officer of the Department of Immigration and Multicultural Affairs ("the Department"), who is a Detention Liaison Officer at the Villawood Immigration Detention Centre, where the applicant was incarcerated on 4 April 2001. One of Mr Mitchell's roles was to forward information received from various agencies, including the Tribunal, to detainees held within the centre. I accept that on 4 April 2001 he handed the facsimile cover sheet, the letter from the Tribunal and the decision of the Tribunal to the applicant. 5 If what took place on 4 April 2001 amounted to notification of the Tribunal decision within the meaning of s 478(1)(b) of the Migration Act 1958 (Cth) ("the Act"), then the application to this Court is out of time and, as time cannot be extended, the Notice of Objection to Competency must be upheld. If s 478(1)(b) is read standing alone, then what occurred plainly amounted to the applicant being notified of the decision. That is the primary submission made for the Minister. 6 However, Div 5 of Pt 5 of the the Act deals with the procedure in relation to decisions of the Tribunal and includes s 430D(2), which provides as follows: "If the applicant is in immigration detention, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made." 7 Regulation 5.02 of the Migration Regulations 1994 (Cth) provides: "For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf." "Document" includes "an invitation, notice, notification, statement or summons, if it is in writing" (reg 5.01). 8 It is certainly arguable that s 478(1)(b) should be construed as meaning "notified in accordance with the Act". If that were so, the question is whether what occurred on 4 April 2001 satisfies s 430D(2), with or without any assistance from reg 5.02. Did the Tribunal give the applicant a copy of the statement prepared under s 430(1) within fourteen days after the decision was made, or at all? It is submitted on behalf of the respondent that Mr Mitchell was, in the circumstances of the case, the agent of the Tribunal to give the statement to the applicant and he did so on its behalf. Counsel for the respondent also pointed out that the procedure in question here seems to be the procedure which was referred to without adverse comment in Kucuk and also in Hussaini v Minister for Immigration & Multicultural Affairs [2001] FCA 790. It was also submitted on behalf of the repsondent that the terms of reg 5.02 have been met in that the document was given to the applicant himself. 9 I put to counsel for the respondent during the hearing some concern at the Tribunal delegating a statutory responsibility to an officer of one of the parties. He correctly responded that proceedings in the Tribunal are inquisitorial rather than inter partes. Nonetheless, the Tribunal in this and all other cases has the task of reviewing decisions made by or on behalf of the Minister which are, in fact, adverse to the applicant before it, and the Minister is the respondent to any proceedings brought in this Court to challenge the decision of the Tribunal. On the other hand, the Minister and his Department are responsible for administering the Act as a whole. 10 It seems to me that the Tribunal is entitled to carry out its function pursuant to s 430D(2) by an agent. The Tribunal, after all, is not a natural person and must act through individuals. The Tribunal as such cannot give a document to somebody else. I do not think that there is any implied prohibition upon engaging the services of an officer of the Department to carry out the function in question. The Department effectively controls the system of immigration detention. As, on this view, the departmental officer is the agent of the Tribunal rather than the detainee, there must be proof that the detainee received the relevant document. This is satisfied in the present case. In my opinion, the Tribunal did give the decision to the applicant. 11 It is therefore not necessary to come to a final view as to the proper construction of s 478(1)(b), as to the consequences of a failure to strictly comply with s 430D or as to the effect of reg 5.02. 12 I must, therefore, uphold the objection to competency and dismiss the application with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.