Kasirye v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Before the Court is a Motion filed by the respondent, the Minister for Immigration and Multicultural Affairs, objecting to the jurisdiction of the Court to hear and decide an application lodged with the Registry of the Court by the applicant for an Order of Review under the Migration Act 1958 (Cth) (the "Act"). It is claimed that the Court has no jurisdiction because Mr Kasirye, the applicant, did not lodge with a Registry of the Court within 28 days of being notified of a decision of the Refugee Review Tribunal (the "Tribunal"), his application for review, as is required by s 478(1)(b) of the Act. 2 The applicant is a citizen of Uganda who arrived in Australia on 26 May 1998. He applied on 17 June 1998 for a protection (class AZ) visa. A requirement for that visa is that the applicant satisfy the Minister, or in the case of a review, the Tribunal, that he is a refugee as defined in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. 3 The application for visa was refused and the applicant sought review of the decision by the Tribunal. The Tribunal handed down its reasons on 5 October 2000. The applicant attended the Tribunal on that day and personally received a copy of the Tribunal's Reasons for Decision. 4 Notwithstanding that the applicant had personally received the Tribunal's reasons, the Tribunal also sent a letter to him on 5 October 2000, at the last address he had given the Tribunal, enclosing a copy of the Tribunal's decision. 5 It is a requirement of s 478(1)(b) of the Act that an application to the Court for judicial review of a decision of the Tribunal be lodged within 28 days of an applicant being notified of the decision of the Tribunal. The time limit under s 478(1)(b) is mandatory and the jurisdiction of the Court to hear and determine an application for review of a decision depends upon strict compliance with it: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468. As the latter case held, a document will be taken to have been lodged with a Registry of the Court when it is physically deposited with it or when it comes into possession of the Registry or staff of a Registry by some other means including facsimile transmission. The word "lodge" is not synonymous with "file". Filing is an act of the Court; lodgement is an act of the person who is required to lodge a document with the Court. 6 It is the Minister's submission that the applicant did not lodge an application with the Registry within the time prescribed. The applicant says he did. The question whether the applicant did lodge an application with the Registry is a factual one and accordingly it is necessary to turn to the evidence before me. I should say that the applicant was not legally represented and much of the evidence which he gave was in response to questions put by the Court. I also directed the New South Wales District Registrar of the Court to file evidence relating to the question of whether the applicant had lodged with the Registry an application. 7 The applicant gave evidence that shortly after he had received the Tribunal's Reasons for Decision he went to see Angela Cranston, a legal aid solicitor, to obtain advice. She told him, he said, that he needed to lodge an application with the Court and gave him two forms telling him to send them in to the Court. Mr Kasirye said that he completed the forms on the evening of 10 October, went to a post office on the next day after work, purchased a stamp and put the two forms into the post. One of the two forms was, he said, a printed form prepared by the Court and headed "Notice to Unrepresented Applicants in RRT Review Cases". It is a form by which an unsuccessful applicant to the Tribunal may seek to participate in the pilot scheme being run in conjunction with the Bar and Law Society through which independent legal advice on appeals may be obtained. He said that before mailing the two forms he had completed the date 10 October 2000 in the form relating to participating in the pilot scheme. The application to participate in the pilot scheme appears on the Court file. 8 On or about 16 October 2000, Mr Kasirye had a telephone call with Mr Hayes, employed by the Court, following an earlier attempt by Mr Hayes to speak to him. It followed Mr Hayes becoming aware of the application to participate in the pilot scheme. Mr Kasirye said that Mr Hayes told him that he had been unable to find an application. Mr Kasirye told Mr Hayes that the application had already been forwarded to the Court and asked Mr Hayes to look for it. Mr Hayes agreed that he would do so. 9 As will shortly be noted, Mr Hayes thereafter forwarded a letter to Mr Kasirye bearing the date 1 November 2000. Attached to that letter were a number of documents including a form to be completed, an uncompleted form of application to the Court for an order of review as well as an application and related documents relating to a waiver of the filing fee. 10 According to Mr Kasirye, on or about 10 October 2000 he filled out the application to the Court and other documents with the aid of a friend. He did not consult Ms Cranston as Ms Cranston had told him that she did not work with the Federal Court. Mr Kasirye took the application and other forms to the counter of the Court Registry and was told that he should see a Registrar. He apparently did this but was told that the Court could not accept the application because it was then out of time. It is that application which is on the Court file and which was lodged on 2 February 2001 to which the Minister has filed the objection to competency. 11 Mr Hayes filed an affidavit in accordance with the direction I had made to the New South Wales Registrar. One of Mr Hayes' functions with the Court is to organise legal assistance to unrepresented litigants through the pilot scheme. 12 Mr Hayes says that on 13 October 2000 he received in the Registry a form headed "Notice to Unrepresented Applicants in RRT Review Cases", which had been signed by Mr Kasirye. That form, completed by Mr Kasirye, noted that an application to the Court for review of the Tribunal's decision "was filed on 10-10-2000". The form contained, as well, the date 25/10/2000 as the date upon which the Notice was to be returned to the Federal Court Registry. The form indicates that that date should be two weeks from the date of filing of the application for review, as indeed it was assuming an application to the Court had been lodged. 13 There is no indication in Mr Hayes' affidavit of how he came to receive the form on 13 October 2000. The Court receives, as Registrar Tesoriero's evidence shows, a considerable amount of correspondence which is opened in a mailroom. It can be inferred that Mr Hayes received at least the one document from a mail clerk after mail had been opened on that day. Mr Hayes said that he searched the Court's database to ascertain the number of Mr Kasirye's file. He says he searched various versions of the name and spellings of the name with no result and concluded that there were no cases shown in the database system bearing Mr Kasirye's name. It may be noted that a date stamp of 13 October 2000 had been affixed to the back of Mr Kasirye's request to participate in the pilot scheme. 14 Mr Hayes attempted to contact Mr Kasirye by telephone at 12 noon and again at 3.25pm on 13 October 2000. On the second occasion he spoke to some person he was unable to identify and left a message. Mr Hayes says that on 16 October 2000 Mr Kasirye phoned him and that they had a conversation. He made shortly thereafter a written note of the conversation. According to Mr Hayes, he advised Mr Kasirye that the election to take part in the pilot scheme had been received but that he had been unable to find any record of an application to the Court. Mr Kasirye replied that he had lodged an application previously. He suggested that Mr Hayes speak to Ms Cranston, his legal aid lawyer, and gave Mr Hayes a telephone number for Ms Cranston. Mr Hayes again searched the Court's database but was unable to find any record of the application being entered into the database. He rang Ms Cranston and left a message on her answering machine. 15 Mr Hayes said that on 17 October 2000 he conducted a thorough search of the Registry in all likely areas where an application might be processed or be pending to be processed but found nothing. 16 When Ms Cranston telephoned Mr Hayes on 17 October 2000, he said to her that he did not think that Mr Kasirye had lodged an application with the Registry and that he should do so or he might be out of time. Ms Cranston replied that she would contact Mr Kasirye but that she was not acting for him. Thereafter, on 1 November 2000, Mr Hayes sent to Mr Kasirye the letter to which reference has already been made. 17 On 15 December 2000, according to Mr Hayes, Mr Kasirye attended the New South Wales District Registry and asked to speak to him. Mr Kasirye had with him a copy of Mr Hayes' letter of 1 November 2000, together with a number of other papers including a form of application to the Court. Mr Hayes redirected Mr Kasirye to a counter officer. Mr Hayes says that he later heard that the counter officer had rejected the application as being out of time. 18 Subsequently, Mr Hayes had a discussion by telephone with a migration agent who said he was acting for Mr Kasirye. The migration agent asserted that Mr Kasirye had lodged an application with the Court previously. Mr Hayes responded that there was no record of that. The migration agent suggested that the Court Registry may have lost the application. 19 An affidavit of Registrar Tesoriero was also read. Mr Tesoriero is a Deputy District Registrar of the Court in the New South Wales District Registry. He likewise searched the Court's computer database and was unable to find any reference to an application lodged with the Registry by the applicant and entered in that database, other than the application ultimately filed on 2 February 2001. 20 Mr Tesoriero had no direct contact with Mr Kasirye or his application prior to being requested to file an affidavit. His affidavit sets out the procedure followed in the Court's Registry from the time a document is received in the mailroom to the time it is filed. In general terms it may be said that after an application is received in the mailroom it is handed to a counter officer and if in the correct form and accompanied by a cheque or exemption/waiver form for the court fees, is accepted for filing. At that time the application is stamped and the Court seal applied to it. The details of the application are then added to the Court's database. Copies of the application are returned to the applicant to enable them to be served on the Minister. Where an application for review of a decision of the Tribunal is accepted for filing, a facsimile of the application is sent to the Department of Immigration in Canberra and also to the Tribunal. If the application is not in the correct form, it is not accepted for filing but is given to the Duty Registrar who is instructed to contact by letter or telephone the person seeking to file the application to explain the difficulty with it. Correspondence of this kind is filed in a general correspondence file that is in the Registry. An examination of that file indicated no correspondence other than a letter dated 24 January 2001 from the District Registrar to the Attorney-General's Department in response to a request for information from that Department together with a copy of that request. 21 Finally, Mr Tesoriero said that the forms "Notice to Unrepresented Applicants in RRT Review Cases" are handed out at the counter to persons interested or sent by post or facsimile to any applicants, solicitors, migration agents or other agencies that ask for them. 22 In response to a question from the bench, Mr Tesoriero said that the Registry staff was very experienced in processing legal documents lodged with the Court. He accepted that there was a possibility that an application might go astray though on the basis of the 11 years he had occupied his present position, he was of the view that that possibility was both remote and unlikely. I have to say that I am aware of one application forwarded by fax in a refugee matter having gone astray in the Registry. The loss of it ultimately became a reported case. Human fallibility being what it is, there will always be a possibility that an application might go astray, however efficient the Registry system may be. However, I accept that it will be a rare case when an application lodged in the Registry will be found to have been lost by the Registry. The Court receives in the mailroom each day a considerable volume of mail and in Mr Tesoriero's opinion it would be pointless to ask if any person remembered a particular application having regard to both that volume and the time that had elapsed since October 2000. 23 After this evidence had been given and because the applicant was not represented, I felt obliged to point out to Mr Kasirye that failure to have Ms Cranston give evidence corroborating what he had said as to his being given two forms, one of which was an application to the Court, might well have adverse consequences to him. I adjourned the proceedings to enable him to have a subpoena issued to Ms Cranston requiring her to give evidence and stood the matter over. 24 The matter came before me again on 14 June 2001. Ms Cranston gave evidence on that day. She said that at some time around 10 October 2000, Mr Kasirye came to see her at her office. She is employed as a solicitor and among the tasks for which she is employed one is to give advice to persons who have applied to the Tribunal to review a decision disallowing an application for a protection visa and whose application has been unsuccessful. She gave Mr Kasirye certain advice and handed him some papers. One was the printed form headed "Notice to Unrepresented Applicants in RRT Review Cases" to which reference has already been made. The second was a form of application for review of the Tribunal's decision which had completed on it the various grounds of review referred to in s 476 of the Act. 25 Subsequently, she spoke to Mr Hayes on or about 17 October 2000. Her account of the conversation was in terms similar to that given by Mr Hayes. 26 The next time she had had contact with the applicant was around 2 or 3 November 2000 when he came to see her. She told him that she was unable to act for him because she was not permitted to do work in the Federal Court. He had with him a number of documents. 27 It will be seen that Ms Cranston's evidence corroborates that of Mr Kasirye. I think it is highly unlikely that Mr Kasirye having been given two documents necessary for the lodging of an appeal and arranging legal representation would have lodged with the Registry the application for legal aid through participation in the pilot scheme but not the application to the Court which had been handed to him by Ms Cranston. In other words, I think it is more probable than not that the applicant posted to the Court by way of lodgement an application for review. Given that only the request to participate in the pilot scheme was received by Mr Hayes, I think it is therefore more likely than not that it became detached from the application to participate in the pilot scheme somewhere after it was received in the Court Registry. 28 It follows in my view that the applicant has succeeded in establishing that he did lodge with a Registry of the Court, namely, the New South Wales District Registry within 28 days of being notified of the Tribunal's decision his application for review as is required by s 478(1)(b) of the Act. On 14 June 2001, I made orders dismissing with costs (if any) the objection to competency and indicated that I would give reasons for my decision at a later date. These are those reasons. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.