Hassanvand v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The background to, and the 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 background or those findings. This matter was heard together with the applications of Amir Jelodare Mamaghani, Mohammad Akhtarani, Abbas Adel Bahri and Hasan Khalil Isa. In relation to this block of applicants, the three persons referred to in Salehi who are no longer applicants also gave confirmatory evidence. This group of applicants also includes some who participated in the hunger strike at the Woomera Centre towards the end of November 2000, to which I made brief reference in Salehi, and which in the manner described below provides some confirmation of their claims. The evidence given in each of these matters prior to the date of the order to that effect was ordered to be treated as evidence in this matter. I shall also adopt 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 10 November 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Hassanvand 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 Details of Mr Hassanvand's arrival Australia are not contained in the material presently before me. Upon his arrival he lodged an application for a protection visa under the Act. A delegate of the respondent refused to grant that visa. Mr Hassanvand then applied to the Tribunal to review that decision. On 10 November 2000 the Tribunal affirmed the decision of the delegate of the respondent not to grant to Mr Hassanvand a protection visa under the Act. 4 I find that Mr Hassanvand was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 14 November 2000. Hence, the period of twenty-eight days thereafter by which Mr Hassanvand was required by reason of s 478(1)(b) to lodge his application for judicial review of the Tribunal's decision, was 12 December 2000. As noted, his application was in fact lodged on 28 December 2000. As its contents show, it was partly completed with his affidavit on 21 December 2000 and was completed on 28 December 2000. 5 Ms Triplett says that at the notification interview she offered to make available the forms for applying to the Court to review the Tribunal's decision. In his evidence, Mr Hassanvand says that he asked for those forms either at that time or the following day. He did so through the interpreter Mr Mortazav. I accept that evidence. Mr Hassanvand impressed me as an intelligent and honest witness, clearly frustrated by his perceptions of how he and others have been treated whilst in immigration detention and in particular in relation to his present application. I also find that he did not receive those forms as requested, although it was (as she acknowledged) part of Ms Triplett's function to provide them. I do not consider that Ms Triplett gave deliberately false evidence. In my view the probable explanation for her assertion that until the incident involving Mr Summeri in early December 2000 she had not been asked to provide those forms, is because her focus was on encouraging persons such as Mr Hassanvand to pursue the course of seeking legal advice and representation, either through private lawyers or through the Legal Services Commission of South Australia. She certainly was active in assisting communications to that end. That focus may have led to her officers not bringing to her attention requests for the forms, or for her not really paying attention to such requests as deserving of immediate attention. 6 Mr Hassanvand related that he was told about the processes of getting legal assistance, including the costs involved in any application. He applied for legal assistance on 15 November 2000. Ms Triplett may have wanted to ensure that those avenues should be exhausted before Mr Hassanvand and others should seek any help from her, so that she did not recognise that their requests required responses at the time. It is also, I suspect, the case that there were many issues confronting her at the time. When she was confronted with the hunger strike, she described the difficulties in identifying the concerns of the strikers because she dealt with nominated delegates only of the hunger strikers, and because those nominated delegates often changed. I accept that her impression was that the concern of the hunger strikers was the delay by the Tribunal in making its decisions. There were, no doubt, difficulties in communication. But Mr Hassanvand was one of the hunger strikers. In his case the Tribunal's decision was known. He said, and I accept, that the reason he went on a hunger strike was that he had not been given the forms he requested to enable him to seek review of that decision. That, too, was the concern of Ms Moayed, so there is confirmation of his evidence. 7 In my view, the communication breakdown which led to Mr Hassanvand's request for the forms not being met was not of his making. 8 The evidence is then clear that after Mr Khoshab returned to the Woomera Centre on 29 November 2000, he was frequently requested to provide assistance to those who wished to seek review of Tribunal decisions, including Mr Hassanvand. Upon his return, Mr Mortazav told him that a number of residents wanted that assistance. He had been paged to the gate of No 3 compound on 20 November 2000 by Mr Hassanvand, Mr Akhtarani, Mr Mamaghani and others for that purpose, but had had little time to confer with them. It was following that day that the hunger strike occurred. As a result of the requests made for him, Mr Khoshab sought a list of those who wanted his help in relation to applications to review Tribunal decisions. That list was prepared and given to him, as I found in Salehi, before the incident involving Mr Summeri. I accept that Mr Hassanvand was one resident pursuing Mr Khoshab for help, and that he and others prepared the list. His name, together with the names of Mr Mamaghani, Mr Akhtarani and Mr Bahri, appears on the list. 9 Thereafter, although Mr Khoshab had the necessary forms provided to him by Ms Triplett on 4 December 2000, I find that he held on to those forms until he had the time to assist Mr Hassanvand and others with their completion. He did not think that time was of the essence as a result of his conversation with Ms Triplett. Nevertheless, Mr Hassanvand and others persistently pursued Mr Khoshab for his help at every opportunity after 4 December 2000, including by paging him to the gate at their compound, and by waiting at the gate in case he passed by. Those efforts were made up to 12 December 2000 and persisted thereafter until Mr Hassanvand eventually was able to see Mr Khoshab. 10 In my judgment, Mr Hassanvand did all that could possibly have been done by him in his circumstances to exercise his right to seek review of the Tribunal's decision by the Court within the period prescribed by s 478(1)(b). 11 Despite those findings, the view I have taken of the scope and effect of s 478(1)(b) and (2) of the Act must result in this application being dismissed. I so order. To the extent necessary I give leave to appeal from this decision. I also extend the time by which any appeal from this decision may be instituted to 14 September 2001. I make no order as to the costs of this application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.