Hafezyan v Minister for Immigration & Multicultural Affairs [2001] FCA 1131

FEDERAL COURT OF AUSTRALIA

Hafezyan v Minister for Immigration & Multicultural Affairs [2001] FCA 1131 IMMIGRATION – refugees – refusal of protection visa by Refugee Review Tribunal – application for judicial review – application one day out of time – availability and filing of applications from detention centres – no deliberate or unreasonable delay after application prepared – application out of time – no jurisdiction to hear review Migration Act 1958 (Cth) s 478(1)

Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672 cited Hocine v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 269 cited AMIR HAFEZYAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 164 of 2001 FRENCH J PERTH 16 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 164 OF 2001

BETWEEN: AMIR HAFEZYAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 16 AUGUST 2001

WHERE MADE: PERTH

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 164 OF 2001

BETWEEN: AMIR HAFEZYAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 16 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant is a 27 year old Iranian national who arrived in Australia by boat on 20 December 2000 without any travel documents. He applied for a protection visa on 9 January 2001. His application was refused on 13 February 2001. He made an application for review to the Refugee Review Tribunal ("the Tribunal") on 16 February 2001 and on 10 April 2001 the Tribunal decided that his application should be refused. 2 On 10 May 2001, an application for an order for review of the decision of the Tribunal was filed in the Western Australia District Registry of the Court by fax from the Curtin Detention Centre. The Minister for Immigration and Multicultural Affairs has lodged a notice of objection to competency. He objects to the jurisdiction of the Court on the basis that the application for review was not lodged with the Registry within 28 days of the applicant being notified of the Tribunal's decision as required by s 478(1)(b) of the Migration Act 1958 (Cth) ("the Act"). 3 On the hearing of the application, the applicant was represented by Ms Minchin as pro bono counsel to argue the jurisdictional issue. The applicant himself was present by video-link from the Detention Centre. He gave evidence relevant to the steps he had taken to lodge the application and he presented his own argument on its merits. 4 Counsel for the applicant acknowledged that it was not in dispute that the applicant was notified of the Tribunal's decision on 11 April 2001. 5 Section 478 of the Migration Act provides: "478(1) An application under section 476 or 477 must: (a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." 6 The applicant gave evidence that he could not recall the exact date he received the application. However, the fax markings on the form indicate that it was faxed up to the Detention Centre from the Federal Court just after 2.00pm on 7 May 2001. The completed form was dated 8 May 2001. In his evidence before this Court, the applicant said he received the fax on the afternoon of the day before he signed it. This would have been 7 May 2001. He asked a friend who could understand the English language to help him complete it. They completed it late that night. The next morning the applicant put the form in a box provided by the Department of Immigration and Multicultural Affairs ("DIMA") for faxing to the Perth Registry. Asked if he could explain why the application was not received by the Court until 2 days later on 10 May 2001, the applicant said: "Because we have to pay money for fax and because I didn't have any money at that time, maybe they kept my application so I had to work two days to earn enough money for pay for the fax money." (sic) Asked if he recalled what day he paid for the fax to be sent, the applicant said the money goes into his account and he has no idea when it is taken out. The cost for the first sheet of a fax is $4.00 and thereafter $1.00 for each sheet. This meant a $10 cost in his case. 7 The respondent was afforded the opportunity to file a responsive affidavit following the hearing of the application. The affidavit of Gregory Wallis, an officer of DIMA who is the Business Manager at the Curtin Centre, was filed. Mr Wallis deposed to standard procedure under which he was confident that the applicant was advised at the time of receiving the Tribunal's decision that he had 28 days in which to lodge an application with the Federal Court for review of it. He was also confident that the applicant would not have been told that he had 28 working days to lodge his application as the 28 day limitation period is well known to staff of the Department. This was in response to a statement by the applicant in the course of submission after he had given his evidence, that he had been told he had 28 working days to lodge his application. Mr Wallis also said that under usual procedures an on-site interpreter would have been used to interpret what the officer said to the applicant in the Farsi language when the Tribunal decision was received. 8 There is also a standard procedure for applicants to send faxes or to make appointments to see DIMA officers. The procedure is that the applicant completes a request form and places it in the DIMA box which is located within the Detention Centre. Any document for faxing is placed in the box with a request cover sheet. 9 The DIMA box is emptied once a day by an officer of DIMA at approximately 8.00am every morning from Monday to Friday. 10 A copy of the applicant's written request to fax his application to the Federal Court was exhibited to the affidavit. It was dated 8 May 2001. According to an endorsement on the request, a representative of the DIMA Manager approved the sending of the attached fax to the Federal Court at Perth. The request to ACM said: "This fax is to be sent as soon as possible and the amount of $10.00 is to be deducted from either their bank or points account and paid to ACM. A transmission report and receipt must be returned to DIMA with the pages that were faxed." It appears from the Department's records that the applicant's fax to the Federal Court was dispatched on 10 May 2001. According to Wallis, officers of ACM checked the applicant's account on 10 May 2001 and found that his account balance was nil so that he had insufficient funds to send the fax, the cost of which was $10.00. However, at the time he was not charged for the fax and the fax was sent. Mr Wallis also notes that the present policy at the Curtin Detention Centre is that applications to the Federal Court are now faxed free of charge. Other documents to be faxed in connection with Federal Court proceedings are charged at the rates of $4.00 for the first page and $1.00 for each subsequent page. 11 There is no evidence in this case of any deliberate delay in sending the application to the Court. Nor can it be said that the officers of the Detention Centre have failed to act with reasonable expedition. It is not their responsibility to inform themselves of the time left for filing an application in a case such as this. The fact that the applicant has filed out of time largely arises from the fact that he left it so late in the day to obtain and complete an application form. These findings of course do not involve any suggestion that the present system could not be substantially improved so that people in detention centres are informed of their rights of judicial review in a way that is clear and comprehensible and not susceptible to misunderstanding where interpreters are used. 12 The jurisdiction of the Court to entertain applications for review of decisions of the Refugee Review Tribunal is limited to applications lodged within the 28 day period after notification – Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672; Hocine v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 269 at 280 and cases there reviewed. The time limit for filing the application in this case expired on 9 May 2001, that being 28 days after notification of the decision not counting the day on which the decision was notified. The Court lacks jurisdiction and the application must be dismissed 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 French.