Akhtarani v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The background to this application, and the general findings concerning it, are set out 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 those findings. This matter was heard together with the applications of Vahid Hassanvand, Amir Jelodare Mamaghani, Abbas Adel Bahri and Hasan Khalil Isa. 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 shall 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 4 October 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Akhtarani being notified of the decision, and the reasons for 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 Akhtarani arrived in Australia on 1 February 2000. On 5 July 2000 he lodged an application for a protection visa under the Act. On 1 August 2000, a delegate of the respondent refused to grant that visa. On 8 August 2000 Mr Akhtarani applied to the Tribunal to review that decision. On 4 October 2000, the Tribunal affirmed the decision of the delegate of the respondent not to grant to Mr Akhtarani a protection visa under the Act. 4 Mr Akhtarani acknowledges that he was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 9 October 2000. Hence, the period of twenty-eight days thereafter by which Mr Akhtarani was required by reason of s 478(1)(b) to lodge his application for judicial review of the Tribunal's decision, was 6 November 2000. As noted, his application was in fact lodged on 28 December 2000. 5 Mr Akhtarani was one of the persons who, upon Mr Khoshab's return to the Woomera Centre on 29 November 2001, made strenuous efforts to contact him to get from him the forms necessary to apply to the Court. I have referred to that process in more detail in my reasons for judgment in Hassanvand v Minister for Immigration and Multicultural Affairs [2001] FCA 1000. His name was on the list submitted to Mr Khoshab. I accept that he was one of those residents who "harassed" Mr Khoshab during December 2000 for those documents and for that help. His application and affidavit were completed, with the assistance of Mr Khoshab, on 15 December 2000. They were not lodged until 28 December 2000. As I have found in Salehi, responsibility for that particular delay lies not with Mr Khoshab, but with Ms Triplett or her officers. However, those events were well after the time for any such application had expired. 6 It is necessary to focus on the period between 9 October 2000 and 6 November 2000. Following his notification interview, Mr Akhtarani wrote to the solicitors who had acted for him at the Tribunal to arrange for an application for review to be made to the Court. He then wrote to the Legal Services Commission of South Australia on 30 October 2000 seeking assistance to "appeal" from the Tribunal's decision. Those documents were sent by facsimile to their intended recipients by Ms Triplett's officers, in accordance with the system in place, on 13 October 2000 and on 31 October 2000 respectively. Although it is not the subject of evidence, I infer that the solicitors who had previously acted for him told him that they could no longer act, and referred him to the Legal Services Commission. That Commission responded to Mr Akhtarani on 14 November 2000, seeking copies of relevant documents, but by then the twenty-eight day limitation period had already elapsed. 7 Mr Akhtarani gave evidence that, in addition to those steps, he also conveyed to Ms Triplett at the notification interview that he wished to apply to the Court to seek review of the Tribunal's decision and signed an application form to do so. It is consistent with his actions that he did then indicate that he wished to apply to the Court to seek review of the Tribunal's decision, but in my judgment he did not then complete any document in the nature of an application form. His evidence was that that document was not one simply written on plain paper, but was a pro forma type of document. I accept Ms Triplett's evidence that she had no such document at the time, and did not proffer any such document at the notification interviews. Moreover, in his correspondence to his former solicitors and to the Legal Services Commission, Mr Akhtarani indicated that he wished to seek review of the Tribunal's decision, rather than that he had done so. I consider that the document he then signed must have been that pro forma document used to request solicitors to contact a visa applicant to pursue such a review. His description of the form he signed is consistent with it being such a document. His later conduct in seeking the relevant forms is also consistent with that conclusion. 8 I accept that from mid to late November 2000, as he learnt of the similar predicament of other residents at the Woomera Centre he joined in the requests of Mr Mortazav and then of Mr Khoshab for help in securing the forms needed to apply to the Court, and to complete those forms. I am not satisfied, however, that he made any request for such forms of Ms Triplett or her officers in the period up to 6 November 2000. I found his evidence of such requests to Mr Khoshab prior to that date to be vague, and I consider that he was attributing to that earlier time events which occurred at a later stage. 9 In the light of those findings, and my views as to the scope and effect of s 478(1)(b) and (2) of the Act, this application must be dismissed. I so order. Although this application has resulted in findings somewhat different from those concerning the other applicants, to the extent necessary, I give leave to appeal from this decision. I also extend the time by which any appeal may be instituted 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.