Hussaini v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks to review a decision of the Refugee Review Tribunal ("the Tribunal"). The decision was one which affirmed the decision not to grant to the applicant a protection visa. 2 The application specifies certain grounds on which the applicant purports to rely. Whether or not those grounds fall within the provisions of s 476 of the Migration Act 1958 (Cth) ("the Act") has not been argued before me and I proceed on the assumption that some or all of them might do so. 3 The applicant claimed to be a citizen of Afghanistan. He arrived in Australia on 17 December 2000. He lodged his application on 28 December 2000 and it was refused by the delegate of the respondent on 25 January 2001. That was reviewed by the Tribunal, which gave its decision on 16 March 2001. The Tribunal concluded that it did not accept that the applicant was from Afghanistan or that he and his family had been persecuted in the past by the Taliban. It concluded his claims were not well-founded, so that there were no protection obligations owed to him by Australia. It is that conclusion which the applicant seeks to challenge by his application for an order of review to this Court. 4 However, the respondent objects to the competency of this Court to hear his application. The notice of competency contends that this Court has no jurisdiction under the Act to review the decision of the Tribunal because the application for review was not lodged with a registry of this Court within 28 days of the applicant being notified of the Tribunal decision. 5 The notice of competency in its terms and in oral argument is supported by a reference to s 478 of the Act; that section was enacted by Parliament. It provides that an application under s 476 must, among other things, be lodged with a registry of the Federal Court within 28 days of the applicant being notified of the decision: see s 478(1)(b). Subsection 478(2) provides that 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 -…" to which I have previously referred. 6 The circumstances of this matter concerned the notification of the decision to the applicant are as follows. He was notified of it on 19 March 2001. Although his application refers to him having been notified of it on 16 March 2001, that is clearly an error and his oral submissions and the other evidence support the finding I have made that he was notified on 19 March 2001. The applicant has been in detention and a letter was sent on that date to his place of detention with a request that it be forthwith delivered to him and that is not disputed by him. It was forwarded by facsimile transmission which contained a request that it be immediately passed to him. 7 The application for review lodged by the applicant was filed and received in the Registry of the Federal Court on 18 April 2001. On the face of it, that is outside the 28-day time limit referred to in s 478(1)(b) so that those sections would apply against the applicant. 8 The applicant submits that when he received the notification of the decision of the Tribunal no-one said anything to him about the time limit or advised him what to do and as he did not have ability in the English language there was nothing he could read or no-one known to him with whom he could communicate to ascertain what steps he should take. There is evidence on behalf of the respondent that, apparently in accordance with standard procedure, the applicant would have received with the notification a letter advising of the 28-day time period for lodgment of any application to review the decision of the Tribunal to the Federal Court. However, he did not read English but there is no obligation at law requiring documents to be provided to the applicant in his own language. 9 The effect of s 478 has been considered in a number of decisions before this court. In Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672 the Full Court (Beaumont, Branson and Emmett JJ) said: "There is now a considerable line of authority in this court which establishes that the court has no jurisdiction to extend time, irrespective of the merits of an application for extension." See also the decision of the Full Court in H v Minister for Immigration and Multicultural Affairs [2001] FCA 43 and the list of authorities appearing in par 15 of the reasons of the Court. 10 The applicant also, as it were, throws himself on the mercy of the Court, saying that his life is in danger and asking the Court to do something to assist him. It should be appreciated by the applicant that the affect of s 478 is one which Parliament has provided for in legislation. It is a barrier to an application being received out of time, which is mandatory in its terms. It does not provide for any judicial discretion in the matter. Australia, as a country abiding by the rule of law, must therefore have courts which apply the law legislated by Parliament, where that is the case, in the terms in which Parliament has clearly enunciated it. This Court therefore has no power to respond to the applicant's entreaties. 11 To sum up, the notice of objection to competency raises a valid point which must be decided in favour of the respondent. Expressed shortly, the point is that the affect of s 478 of the Act is to preclude the application of the applicant being considered by the Court, because it was not lodged with the Registry of the Federal Court within 28 days of the applicant being notified of the decision. 12 Accordingly, the notice of objection to competency should be allowed and the application dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.