W231/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 80

FEDERAL COURT OF AUSTRALIA

W231/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 80

MIGRATION – refusal to grant protection visas – Tribunal affirming decision of respondent not to grant visas – applicant in detention – applicant did all that was possible to lodge notice of appeal within time – Australian corrections management failed to lodge notice of appeal given to it – notice of appeal lodged out of time – whether Court has jurisdiction to hear the application – whether statute abrogated fundamental freedom of right of access to the courts – whether that fundamental freedom included right of unimpeded communication with the courts – whether deemed compliance with Act – whether respondent in position of conflict

Migration Act 1958 (Cth) ss 256, 476(1), 478, 478(1)(b) Acts Interpretation Act 1901 (Cth) s 36 Summary Jurisdiction Act 1857 (UK) s 2

Finn, Fiduciary Obligations (Law Book Company, 1977) ch 15 and ch 21

Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672 followed Hong v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 469 referred to Oguzhan v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 285 referred to Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 referred to Abidin v Minister for Immigration & Multicultural Affairs [2001] FCA 842 referred to Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 referred to Victorian Council for Civil Liberties Incorporated v Minister for Immigration & Multicultural Affairs (2001) 182 ALR 617 cited Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 cited Raymond v Honey [1982] 1 All ER 756 cited Chester v Bateson [1920] 1 QB 829 cited R & W Paul Ltd v Wheat Commission [1936] 2 All ER 1243, [1937] AC 139 cited Re Boaler [1915] 1 KB 21 cited Reg v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778 cited Leech v Secretary of State for Scotland [1991] SLT 910 cited Reg v Secretary of State for the Home Department, ex parte Leech [1994] QB 198 cited Mabo & Ors v Queensland (No 2) (1992) 175 CLR 1 referred to Wills & Sons v McSherry [1913] 1 KB 20 cited Keir v Morris (1963) 4 FLR 230 referred to Bropho v Western Australia [1990] 171 CLR 1 cited Potter v Minahan [1908] 7 CLR 277 cited Clay v Clay (2001) 202 CLR 410 cited Cubillo v Commonwealth (2000) 174 ALR 97 cited Le v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 27 referred to W231/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W231 of 2001 RD NICHOLSON J 12 FEBRUARY 2002 PERTH