Radhi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant brings an application for an order of review of a decision of a Refugee Review Tribunal ("the Tribunal") and to review other decisions made under the Migration Act 1958 (Cth) ("the Act") or regulations relating to visas. The application does not spell out the grounds on which it relies other than in those terms. However, I accept the submissions for the respondent that the application relates to a judicially‑reviewable decision as defined in s 475(1)(b) of the Act. Furthermore, I assume that it either does in its present terms or would on further argument be supported by grounds falling within s 476(1) of the Act as grounds open for review in relation to a judicially‑reviewable decision. 2 The decision of the Tribunal affirmed the decision of a delegate of the respondent not to grant the applicant a protection visa. Essentially, the reasons of the Tribunal were that it was not satisfied the applicant was a citizen of Algeria and it was on that basis that he had contended for the application of the Refugees Convention and for the availability of a protection visa to him. 3 The applicant arrived in Australia on 20 February 1998. On 6 May 1998 he lodged an application for a protection visa. The delegate's refusal occurred on 11 June 1998. The Tribunal's decision was on 21 July 1998. 4 On 24 July 1998, the Tribunal wrote to the applicant advising him of its decision and enclosing a copy of the Tribunal's decision and reasons. The applicant acknowledges receipt on that date of that letter. Evidence also discloses that other copies of it were sent to him through representative agents involved in his case at the time, so the proposition of his receipt of the letter on that date is not in dispute. 5 On or about 4 August 1998, the applicant made oral contact by telephone with an officer of the Federal Court, the result of which was, on the applicant's evidence, that the Federal Court officer sent him various documents. However, the applicant took no action in relation to these because of his limited English skills. 6 On 13 December 1999, the application for review was lodged with the court. On 17 January 2000, the respondent lodged a notice of objection to competency in relation to the application of the applicant. The notice objected to the jurisdiction of this Court to hear the application because the twenty-eight day time limit had been exceeded, see s 478(1)(b) of the Act, and because any other review was specifically excluded by s 485 of the Act. 7 Section 478 of the Act provides that an application under s 476 must be lodged with a registry of the Federal Court within twenty-eight days of the applicant being notified of the decision: s 478(1)(b). By subs 478(2): "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 specified in paragraph (1)(b)." Those provisions have been enacted by Parliament and it is the duty of the Court to give effect to them. 8 I have already found that the application is an application under s 476. I find also that the application for review lodged on 13 December 1999 was not lodged within twenty‑eight days of the applicant being notified of the decision. Therefore, on the face of it, the application does not come before the Court and the Court's jurisdiction is precluded by s 478. 9 However, the applicant contends that his limited knowledge of English should be taken into account and the application considered. In Nguyen v Refugee Review Tribunal (1997) 74 FCR 311, it was accepted by each of the members of a Full Court that the expression "notification" in s 166BA of the Act did not extend to impose an obligation on a decision‑maker to ensure that the notice is translated into the language of the recipient: see at 321, 325 and 331. In my view, the same reasoning would be applicable to the word "notified" as it appears in s 478(1)(b). 10 There is an additional reason why this should be so. Section 478(2) is explicit in its provision. That has been recognised by the Full Court in Nirmalan v Minister for Immigration & Multicultural Affairs, unreported, Federal Court (Beaumont, Branson and Emmett JJ) Sydney, 14 May 1998. There the Court accepted there is now a considerable line of authority in the court establishing that the Court has no jurisdiction to extend time for an application irrespective of the merits of an application for extension. 11 There is no other provision to which the applicant can turn to provide relief against the effects of s 478 - see s 485(1) of the Act. 12 It follows that the Court does not have jurisdiction to hear the applicant's application and that the notice of objection to competency must be allowed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.