findings: general
11 There are some matters of fact which are common to all applicants. The Acting Deputy Business Manager of the Woomera Centre, Sandra Mary Triplett ("Ms Triplett") was the principal officer responsible for dealings with the applicants at material times. The Infrastructure Manager at the Woomera Centre, John Edward Tonkin also gave evidence by affidavit. His evidence was confirmatory of the evidence of the procedures adopted to notify residents of the Woomera Centre of decisions of the Tribunal. There is no issue in any of the applications about the date of notification of the Tribunal's decision, or (with one exception) that the relevant applicant was then apprised of the right to seek judicial review of the Tribunal's decision, and of the twenty-eight day period specified by s 478(1)(b) to do so. I do not need to refer to his evidence further.
12 Mehrdad Khoshab ("Mr Khoshab") is an accredited Farsi interpreter. He was stationed at the Woomera Centre at material times, except for a period of leave between 3 and 20 November 2000 and then from the evening of 20 November 2000 until 29 November 2000 when his services were required elsewhere. He was the interpreter principally available to the applicants. He completed each of their applications and supporting affidavits to the Court, and arranged for them to be signed, with the exception of that concerning Mr Isa. The limited information which is contained in the various applications and affidavits, with one qualification, was provided by the respective applicants from his discussions with them. He then, promptly in each instance after each application and affidavit was completed, gave those documents to Ms Triplett to send by facsimile to the Court, or if she were unavailable, he placed them in a green folder for her attention in accordance with an arraignment with her. She, in turn, had instructed her officers to promptly send those documents to the Court. In a number of instances, in circumstances which are unclear, the application and affidavit were not sent promptly. I refer to those instances when addressing the individual circumstances of each applicant. I accept Mr Khoshab's evidence that any delay, once such documents were completed, was not his fault. I find that, in those instances, there was some oversight on the part of Ms Triplett or her staff which led to the delay, or some failure to remit those documents in a timely manner. Several of the applicants suggested that those delays were part of a concerted and deliberate campaign by Ms Triplett or her staff to cause their review applications to fall out of time, but I do not find that claim to be made out.
13 In the case of Mr Isa, the interpreter who assisted him was Frossine Hallak ("Ms Hallak"). She gave evidence. In all respects it coincided with the evidence of Mr Isa himself. I have dealt with his individual circumstances in my reasons for decision dealing with his claim.
14 In the course of the evidence, reference was also made to Tony Hamilton-Smith, the Business Manager at the Woomera Centre. He did not give evidence. It did not appear to me that his role was of particular significance in relation to the present issues. I also note that Reza Mortazav ("Mr Mortazav") featured in the narrative of events. He also is a Farsi interpreter and translator who worked at the Woomera Centre at material times. In particular, he was a point of contact for several of the applicants during November 2000 when Mr Khoshab was absent from the Centre. He was not called by the respondent to give evidence.
15 Apart from the period of Mr Khoshab's absence from the Woomera Centre in November 2000, there are two other events around which the findings can be made. There was a hunger strike of some forty residents of the Woomera Centre, in late November 2000. It lasted for a number of days. It had ceased by about 29 November 2000. Its participants included Mr Hassanvand, and to a lesser degree Mr Akhtarani. Evidence about the hunger strike was given only in the course of the second block of hearings, rather than in the block of hearings of which this matter is one. It has not played a part in my consideration of this or the other four matters in this block, but it seems to me to be sensible to note the event at this point. The other event occurred on 3 or 4 December 2000. A resident, Farid Summeri ("Mr Summeri") threatened to commit suicide for reasons related to a proposed application to the Court for review of a Tribunal decision. The precise reason for his threat is contentious. He did not give evidence. As a result of his threat, Ms Triplett spoke to him. She subsequently, at his request and on 4 December 2000, obtained from the Court copies of the form of application and affidavit form for use in applications for judicial review of Tribunal decisions. There were no such forms available to residents of the Woomera Centre before that date.
16 The practice of Ms Triplett when notifying residents at the Woomera Centre of the outcome of Tribunal decisions included advising them of the option of accepting the decision and electing to leave Australia, and of an "appeal" to the Court. I accept her evidence which accords with that of the majority of the applicants, that she also told them that any "appeal" had to be instituted within twenty-eight days. She also provided those persons with a pro forma letter which, she said, was to be returned within seven days if the particular visa applicant wished to "appeal". To that time, the applicants had had the benefit of assistance of a lawyer who was a migration agent. The pro forma letter was to be addressed to the relevant lawyer, containing a reference to the Tribunal decision and the request to contact the particular visa applicant. Ms Triplett or her officers would then send that letter, duly completed, to the lawyer concerned.
17 I have some reservations about the reliability of Ms Triplett's evidence. It has three significant incongruities. As is understandable in the circumstances, the applicants did not vigorously cross-examine her on those matters so I am not prepared to find that she was, as they suggested, consciously untruthful. I also reject their contention that she, and officers under her direction, deliberately set out to cause their review applications to be out of time. In my view, the whole of the evidence indicates that the process of attending to the requests of the applicants in relation to their proposed judicial review applications was not recognised as meriting priority. Indeed, with the available resources, there may well have been other very significant priorities. The picture clearly emerges that residents of the Woomera Centre in November and December 2000 had considerable difficulty in getting responses to their requests for information generally, except perhaps in clearly urgent circumstances. Whether the threatened suicide of Mr Summeri was due to concerns that his lawyers had not responded to him, or to delay by the Tribunal in making its decisions, or to concerns that his requests for forms to apply to the Court were not being met when the time limit was expiring, that event clearly indicates a frustration on the part of residents directed at the respondent's officers for not providing those residents with responses to their questions. In respect of the second block of cases, the hunger strike invites the same comments. Several of the applicants described difficulties in being able to get access to officers of the respondent, in particular to Ms Triplett.
18 The particular disharmonies in Ms Triplett's evidence are :
(1) The agreed standard procedure from June 2000 when residents were notified of Tribunal decisions included :
"If applicants state during the appointments that they wish to appeal to the Full Federal Court, I give an application form to them at the meeting, and tell them again that they should get it back to us within seven days so that we can fax the form off to the Federal Court and then to DIMA's solicitors. We have the Federal Court appeal forms in the DIMA office at Woomera for distribution. Whenever applicants ask us for the forms, we hand them out. I tell them that at appointments that if they wish to appeal, then they should let us know, and if they let us know, I can then get the forms to them straightaway.
If applicants say that they would like to think about appealing, I advise them to get back to me within seven days and I will give them the appropriate documentation. ..."
(her affidavit sworn 22 March 2001)
whereas, in her affidavit sworn 1 June 2001, she said that the first time she was asked by a resident to provide a form to apply to the Court was on 3 or 4 December 2000 when Mr Summeri requested one, and that there were no available forms up to that time; she then procured them from the Court.
(2) In her affidavit sworn 22 March 2001, Ms Triplett said that the background to the seventeen applications referred to above was that two people lodged their own applications on about 4 December 2000, and so the applicants through Mr Khoshab sought the necessary forms, but she did not then refer to the circumstances in which Ms Summeri was provided with the necessary forms.
(3) In her affidavit sworn 22 March 2001, Ms Triplett explains why the applications were lodged with the Court on 28 and 29 December 2000: it was because the applicants wanted their applications dealt with as "job lot" and so they were sent in job lots to the Court, but her oral evidence made no reference to that arrangement and asserted that each application was sent as soon as it was received from Mr Khoshab, except that there were unexplained delays through some administrative errors.
19 Those matters, together with my general impression of Ms Triplett's evidence, make me cautious about accepting her evidence where it is contradicted by that of the applicants. In general, there is little direct conflict. It is more, I think, a situation where Ms Triplett's understanding of her accessibility and that of her officers to the applicants does not reflect the level of accessibility which the applicants sought and were given. It may be that that was so because of other obligations and commitments of Ms Triplett and her officers in the discharge of their duties and in the performance of their functions. I am not in a position to decide that. In relation to review applications, her efforts may have been directed to assisting the applicants in obtaining legal assistance, without realising (as appears to have been the case) that such legal assistance was not likely to be available so that she did not understand until after the incident involving Mr Summeri that the applicants wanted to pursue their review rights directly, notwithstanding her standard presentation at notification interviews.
20 Certainly, there were limited interpreting services available at the Woomera Centre. Mr Khoshab described clearly that much of his day was taken up with regular commitments, such as interpreting at the medical centre and at notification interviews. He agreed that he was frequently accosted by residents seeking assistance and was too busy to provide that assistance at the time. He, and other interpreters, often worked out of normal hours to help residents. He agreed that, as several of the applicants said, he often counselled residents to "be patient". It is consistent with his evidence that several of the applicants who worked in the kitchen invoked his aid on a regular basis as he passed through. It is also consistent with his evidence that, as several of the applicants described, he was paged by them to come to the gate of the compound where they were detained to seek his assistance on a number of occasions. In a practical sense, apart from the process of securing formal interviews with Ms Triplett or Mr Hamilton-Smith, that was the only means by which the applicants could make requests of Ms Triplett and her officers.
21 There was in place a procedure whereby a resident could lodge a form requesting an interview with Ms Triplett or one of her officers. The form would have to identify the purpose of the interview. If necessary, it was translated. Ms Triplett explained that the interview requests were then prioritised for attention. Her evidence did not deal with delays which were sometimes experienced by residents in securing interviews when the requests were prioritised. It is not inconsistent with suggestions from certain of the applicants that there were often long delays in securing interviews, perhaps also evidenced by the incident involving Mr Summeri. Ms Triplett described how he had painted on his shirt words like "DIMA is killing me or I will kill myself", indicative of some frustration in having his concerns addressed by the respondent's officers, whether those concerns related to delays on the part of his lawyers or on the part of the respondent's officers.
22 A contentious factual issue is the time at which any of the applicants first sought from the respondent's officers the forms to enable them to apply to the Board to review a decision of the Tribunal. As noted, Ms Triplett says that that did not occur before the incident involving Mr Summeri. Ms Triplett, when addressing that incident, said that Mr Summeri would have been told when notified of the Tribunal decision that he could ask for the forms to do so. It was one of her functions to provide them if requested. It is, in that circumstance, hard to understand why the situation was reached that that incident occurred, except for an inability to have such a request conveyed to Ms Triplett or to be acted upon. Each of Mr Sadat, Mr Sahak and Mr Karimi, gave evidence of having made a written request for the necessary forms within a few days of their respective notification. Those requests were in Farsi or Dari, and according to the system in place they would then have been translated and responded to. Clearly that did not occur. In my view, those requests were made. For some reason the system did not get followed. I accept their evidence on that matter, as it is in accordance with the notification which they were given when informed of the Tribunal's decision, and both Mr Salehi and Mr Karimi gave cogent evidence of having enlisted the help of another person to write those requests because each is unable to write. It is also consistent with the general evidence of each of the applicants as to the persistent attempts to secure the necessary forms through Mr Khoshab thereafter.
23 It may well be that, for some reason, those requests did not come to Ms Triplett's attention until the incident involving Mr Summeri, but if so I do not consider that that was because the requests were not made. I also have formed the view that, despite the evidence of Mr Khoshab that no such requests were made of him before 4 December 2000, the applicants' evidence on that issue should be preferred. I do not think he was trying to mislead me on the matter. But the concern of some of the applicants about the passage of time and the need to make their applications clearly existed during November 2000. When he returned from leave on 20 November 2000, he was told by Mr Mortazav that a number of residents wanted his assistance in relation to their proposed Federal Court applications, and on that day he briefly spoke to Mr Akhtarani, Mr Mamaghani and Mr Hassanvand on the topic. He then had to leave the Woomera Centre at short notice. On his return, he was again approached by them. At his request, he was given a list of persons who wanted his help. I find that he was given that list before the incident involving Mr Summeri, because Mr Summeri's name appears on the list. Mr Khoshab has noted on that list that Mr Summeri's application is "with Sandi", that is Ms Triplett. At that time, he procured from Ms Triplett a number of copies of the necessary forms for residents at the Woomera Centre. Whilst his other commitments may have resulted in him not previously appreciating that the residents wanted the necessary forms, in my view that list is more likely a culmination of such requests over time to him and to Mr Mortazav. Beyond that general finding, it is necessary to address the individual circumstances of each applicant.
24 Mr Khoshab was given access by Ms Triplett to a particular room at the Woomera Centre from 6 December 2000 to interview the applicants in relation to the preparation of applications for judicial review of the various decisions of the Tribunal. I accept his evidence that he was too busy to provide that assistance to all the applicants at that time. In the cases of Mr Salehi and Mr Sadat, the applications were not completed until 27 December 2000. In the case of Mr Karimi, Mr Sahak, Mr Naseri they were completed on 13, 14 and 15 December 2000 respectively and were provided to Ms Triplett or placed in her green folder either that day or the following day. It was some failure on the part of Ms Triplett, or of her officers, that those three applications were not lodged with the Court within a day of their completion.
25 Each of the applications or supporting affidavits which is out of time contains some form of request for an extension of time because the delay was due some difficulty in getting a response to a request for legal aid. Whilst several of the applicants did seek legal aid for a judicial review application, I consider that that part of the documents was so expressed at the instigation of Mr Khoshab (in the case of Mr Isa, Mr Hallak wrote a similar entry after speaking to Mr Khoshab). I also find that Mr Khoshab, in early December 2000, when he realised that a number of the applicants were out of time, spoke to Ms Triplett about that. She did not know whether an extension of time was possible, and told him that it was up to the Court to make a decision if an application was lodged late. It was her suggestion that the applications be made with a request for an extension of time, and the reasons for the delay. It was Mr Khoshab's understanding, albeit as I have found an erroneous or incomplete one, that the reason for the delay generally was the time it took to get a response to an application for legal aid. Those parts of the documents do not cause me to reject the evidence of any of the applicants.