Karimi 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 Salehi, and with the applications of Seyed Mobarak Ali Heidary Sadat, Zarpadeshah Naseri and Mohammad Farooq Sahak. 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 will 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 24 October 2000 should now be dismissed as incompetent because it was not lodged with the Court within twenty-eight days of Mr Karimi 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 Karimi arrived in Australia on 1 February 2000. On 1 June 2000 he lodged an application for a protection visa under the Act. On 28 July 2000, a delegate of the respondent refused to grant that visa. On 8 August 2000 Mr Karimi applied to the Tribunal to review that decision. On 24 October 2000, the Tribunal affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa under the Act. 4 Mr Karimi acknowledges that he was, in accordance with s 430D(2) of the Act, notified of the Tribunal's decision on 25 October 2000. Hence, the period of twenty-eight days thereafter by which Mr Karimi was required by reason of s 478(1)(b) to lodge his application for judicial review of the Tribunal's decision, was 22 November 2000. As noted, his application was in fact lodged on 28 December 2000. 5 At about the same time as Ms Triplett notified Mr Karimi of the Tribunal's decision, he received a letter from the lawyer previously acting for him also telling him of the decision and of his right to seek review of the Tribunal's decision by the Court. That letter indicated that the lawyer could no longer act for him, and referred him to the Legal Services Commission of South Australia. He also received, and completed, the pro forma document by which he asked his former lawyer to contact him. It is clear that, in the normal manner, that document was sent on by Ms Triplett or her officers. On 1 November 2000 that lawyer wrote to Mr Karimi informing him of his options (to seek review to the Court or to seek a determination by the respondent under s 417 of the Act), but otherwise indicating that that lawyer could no longer assist him. On 1 November 2000 Mr Karimi did write to the Legal Services Commission of South Australia. Again the normal processes secured its dispatch. On 14 November 2000, that Commission asked Mr Karimi for further information. He sent the requested information, but it is not clear what happened as a result. 6 In the meantime, Mr Karimi within a few days of 25 October 2000, had a letter written in Dari to pursue his proposed application to the Court. I accept that he did have such a letter prepared. It was written at his direction by Mr Samad, as Mr Karimi cannot write. It was, in accordance with the system in place, handed to an officer at the Woomera Centre for provision to Ms Triplett or her officers. In the normal course, if it did not have an identifiable address, it would be translated and appropriate action taken. Mr Karimi did not give much detail about the letter, but I discerned that it was not a request to Ms Triplett to provide to him the forms needed to apply to the Court but was in the nature of a one page handwritten letter to the Court to effect an application to the Court. I find that that letter was not sent to the Court. 7 As Mr Karimi heard nothing then for some days, he contacted Mr Mortazav to discuss what he should do. He was concerned about the delay. He was advised to await Mr Khoshab's return. I accept that that course of events occurred. I found Mr Karimi to be coherent and persuasive in that evidence. By the time Mr Khoshab had returned to the Woomera Centre, the time had expired by which Mr Karimi's application to the Court might have been lodged. I think he is mistaken in saying that he spoke to Mr Khoshab a few days before that time expired, although Mr Khoshab was at the Woomera Centre on 20 November 2000. In my view his contact with Mr Khoshab was after 29 November 2000. 8 I do not need to address the events after 22 November 2000 in any detail. I find that soon after his return to the Woomera Centre on 29 November 2000, Mr Khoshab was asked by Mr Karimi for the forms to pursue an application to the Court, and he was also asked about the significance of the twenty-eight day period having elapsed. I accept that Mr Khoshab provided the forms to Mr Karimi, and told him that an extension of time may be possible. On 13 December 2000 Mr Khoshab found the time to assist Mr Karimi in completing the application and the affidavit of Mr Karimi. He either gave it to Ms Triplett, or left it in her green folder as arranged, on that day or the following day. It was not sent to the Court until 28 December 2000 by Ms Triplett or her officers, but not because they deliberately delayed doing so. 9 In my judgment, Mr Karimi did all that he could reasonably have done in his circumstances to lodge an application for review of the Tribunal's decision within time. However, despite the findings I have made about why his application was lodged belatedly, my view of the scope and operation of s 478(1)(b) and (2) of the Act means that this application, as it is out of time, must be dismissed. To the extent necessary I give leave to appeal from the decision. I extend the time by which any appeal may be brought to 14 September 2001. I make no order for 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.