Alauddin v Minister for Immigration and Multicultural Affairs

[2000] FCA 1606

FEDERAL COURT OF AUSTRALIA

Alauddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1606

CITIZENSHIP AND MIGRATION – refugees – application for review of Refugee Review Tribunal decision – application out of time – objection as to competency – date of notification – application dismissed.

Migration Act 1958 (Cth)

Nguyen v Refugee Review Tribunal (1997) 74 FCR 311
Oguzhan v Minister for Immigration and Multicultural Affairs (2000) FCA 781

JUDGE:	FRENCH J
DATE OF ORDER:	2 NOVEMBER 2000
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W116 OF 2000

BETWEEN:	MOHAMMAD ALAUDDIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	2 NOVEMBER 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W116 OF 2000

BETWEEN:	MOHAMMAD ALAUDDIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	2 NOVEMBER 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1. In this case the applicant Mohammad Alauddin filed an application in this Court on 18 July 2000 which was stated to be an application to review a decision of the Refugee Review Tribunal which confirmed the decision of the Minister for Immigration & Multicultural Affairs not to grant him a Protection Visa.  The Tribunal's decision was made on 18 May 2000.  According to the application the applicant was notified of the Tribunal's decision on 12 July 2000.  The grounds of the application went to the applicant's stated reasons for his inability to return or the dangers that face him if he were returned to Bangladesh including his alleged active involvement with the Freedom Party and the hostility to him of the Awami league. 

2. The application itself disclosed no viable grounds for review of the decision, having failed to set out any of the grounds upon which review is available under s 476 of the Migration Act. On 2 August, a notice of objection to competency was filed on behalf of the respondent on the basis that the application for review was not lodged with the registry of the Federal Court within 28 days of the applicant being notified of the Refugee Review Tribunal decision as required by s 478(1)(b) of the Migration Act.  That is, I accept, a time limit which the court is unable to extend by virtue of the provisions of the Act.

3. I gave directions on 3 August 2000 at a time when Mr Alauddin was unrepresented.  One of the directions was that he be referred to the pro bono panel for advice and possible representation.  I also directed that he prepare a written statement in his own language explaining to the court why his application was delayed, when he received notification from the tribunal, and why the tribunal's decision should be overturned.  This was done on the assumption that he might not have legal representation when the matter came on for hearing.

4. In the event, Mr Hooker of counsel volunteered his services and appeared in court to represent Mr Alauddin today and has given him advice.  Mr Hooker has indicated that there is nothing that he can usefully say, and he has no instructions which would provide any basis upon which he could say anything in opposition to the objection to competency, although he did tell the court that his client was anxious to have explained to the court that the delay in filing the application arose because of the stress under which he was operating, his situation in detention and his concern for his family in Bangladesh, and his unawareness of his legal obligations in respect of seeking review of the Refugee Review Tribunal decision.

5. The evidence before the court at the present time in relation to the objection as to competency does not directly address the date of notification.  The affidavit of Peter John Corbould however does include at p 105 of the exhibited documents a facsimile message sent from the Refugee Review Tribunal to the Port Hedland Detention Centre on 18 May 2000 which would indicate that, in the ordinary course, Mr Alauddin should have received the decision at or about that time.  He confirmed orally in court today that he was notified of the tribunal decision at that time, albeit not in any translation into his own language.

6. If that be the case, then plainly his application is well out of time, it having been filed on 18 July.  The question whether notification of the decision in the English language to a person who does not speak English is notification for the purposes of the legislation has previously been addressed in the case of Nguyen v Refugee Review Tribunal (1997) 74 FCR 311, and subsequently and more directly on point for present purposes by Carr J in Oguzhan v Minister for Immigration and Multicultural Affairs (2000) FCA 781.

7. Mr Hooker rightly points to the harsh operation of the provisions and that construction of the provisions, but having regard to the construction given by the Full Court in Nguyen to an analogous provision of the Act and the application of that construction to the provision here in point by Carr J in Oguzhan, I feel that I have no choice but to accede to that construction and accept that notification is notification whether or not in the English language.  There are some who might see this as taking us back to the bad old days of the dictation test in terms of dealing with migrants or applicants for asylum.  However, I am bound by the law, and being bound by the law I must uphold the objection as to competency and dismiss the application with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             2 November 2000

Counsel for the Applicant:	Mr R L Hooker
Solicitor for the Applicant:	Legal Aid Western Australia
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 November 2000
Date of Judgment:	2 November 2000