Elci, Ismail v Minister for Immgration and Multicultural Affairs

[1998] FCA 1154

FEDERAL COURT OF AUSTRALIA

MIGRATION – Application to review decision of the Refugee Review Tribunal refusing the grant of a Bridging E (Class WE) subclass 050 Bridging visa (General) – Whether letter to Refugee Review Tribunal constituted an application for judicial review within the terms of the legislation – Meaning of “lodged” with registry of the Court.

ELCI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No VG 207 of 1998

JUDGE:         NORTH J
PLACE:         MELBOURNE
DATE:           31 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 207  of   1998

BETWEEN	ISMAIL ELCI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		NORTH J
DATE OF ORDER:		31/07/98
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The motion, notice of which was filed by the applicant on 4 June 1998, is dismissed.

1. The applicant is to pay the respondent's costs of and incidental to the application including the motion, notice of which was filed by the respondent on 22 June 1998.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 207 of 1998

BETWEEN	ISMAIL ELCI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	NORTH J
DATE:	31/07/98
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

The applicant, Ismail Elci, is a 30 year old male citizen of Turkey.  On 8 April 1998, he applied to the Department of Immigration and Multicultural Affairs (the Department) for grant of a Bridging E (Class WE) subclass 050 Bridging visa (General).  On 14 April 1998, the Department refused that application.  On 15 April 1998, the applicant lodged an application for review with the Immigration Review Tribunal. On 24 April 1998, the Immigration Review Tribunal refused his application. Schedule 2 to the Migration Regulations set out the criteria to be met for the grant of a subclass 050 Bridging visa (General).

The Tribunal found that the applicant did not satisfy any of the required criteria. 

On 20 May 1998, the applicant filed an application in this Court for a review of the decision of the Immigration Review Tribunal.  The applicant claimed that the Immigration Review Tribunal should have found that he fell within the criteria set out in cl 050.212, cl 3A, (a) and (b)(ii), which provide:

“An applicant meets the requirements of this subclause if:

(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and

(b)(ii)     the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed.”

The applicant applied for a protection visa, which was refused by the Department on 5 June 1997.  He sought review by the Refugee Review Tribunal.  On 29 October 1997, the Refugee Review Tribunal dismissed the application. The Refugee Review Tribunal did not accept that the applicant was an Alevi and hence, even if he was subject to persecution in Turkey, he had not established that the persecution was for a Convention reason. 

On 29 October 1997, the Refugee Review Tribunal wrote to the applicant as follows:

“RE APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) 

The Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa. 

I enclose a copy of the Tribunal's decision and reasons.  A copy of the decision has also been sent to the Department of Immigration and Multicultural Affairs (DIMA). 

The Tribunal's file on your case is now closed. 

You may have a right of review of this decision in the courts.  You may wish to get independent advice about this. 

If you want the Federal Court of Australia to review your case you must apply within thirty-five (35) days after the date of this letter and you must name the Minister for Immigration and Multicultural Affairs as the respondent and not the Tribunal.

If you have any questions about your current status in Australia you should contact your regional office of DIMA, not the Tribunal. 

Yours sincerely” -

and then there is a signature -

“for Deputy Registrar
Melbourne Registry”

At the bottom of the page, centred and in bold print, appear the following:

“PO Box 14422, Melbourne City Mail Centre, Melbourne 8001
Level 2, 628 Bourke Street, Melbourne 3000 
Telephone [phone], Facsimile [phone]”

On 25 November 1997, the Refugee Review Tribunal received a letter from the applicant.  The heading was in three lines. The first line read – “Ismail Elci”, the second line read –“Federal Court Australia”, and the third line read – “Turkish interpreter”.  The rest of the letter was written in the Turkish language.  In translation, the letter said:

“I left Turkey where I lived because I feared for my life.  I made a refugee application with the Australian authorities on 24 March 1997.  I was interviewed on 28.10.1997 but my application was refused.  Because I did not have a lawyer, I had to make my review application on my own.  I want my application to be heard again.”

And then followed the applicant's signature and address.  The Express Post envelope in which the applicant's letter was contained was addressed to "Federal Court of Australia” at the address contained at the bottom of the letter from the Refugee Review Tribunal to the applicant, namely "PO Box 14422, Melbourne City Mail Centre, Melbourne 8001". 

It seems obvious that the applicant intended to challenge the decision of the Refugee Review Tribunal.  It is a reasonable inference that in sending the letter he followed the instructions which might appear to emerge from the letter from the Refugee Review Tribunal to somebody not familiar with the English language and the legal hierarchy and institutions in Australia. At the centre top of the Refugee Review Tribunal's letter is the formal crest of Australia.  The body of the letter refers to a review to the Federal Court of Australia, states that an applicant must apply for such a review, and then the letter records an address at the bottom of the page.

I would infer in these circumstances that the applicant derived from the letter the message that the next step in a challenge to the Refugee Review Tribunal’s decision was to approach the Federal Court of Australia, and the only address appearing on the letter must have seemed to be the destination for such an application.  Of course such a reading of the letter would not be made by somebody familiar with the English language or with the legal institutions of Australia.  However, in migration law, communication is often made with persons unfamiliar with the language and with Australian institutions.  It is therefore critical that communications be clear and precise.  In future, it would be desirable for such a letter to indicate the relevant actual address of the Federal Court of Australia for persons in the unfortunate position of Mr Elci. 

The basis for the review of the decision of the Immigration Review Tribunal is that the applicant’s letter was an application for judicial review, which review had not been completed.  If that were so, the applicant would properly fall within cl 050.212, 3A (a) and (b)(ii).  On 22 June 1998, the respondent, the Minister for Immigration and Multicultural Affairs (the Minister), filed a motion seeking an order that the application be dismissed pursuant to O 20 r 2 and O 54B r 5 of the Rules of the Federal Court, on the ground that no reasonable basis for the application was disclosed.

The Minister contended that an application for review under s 476 of the Migration Act must comply with s 478(1)(a) and (b) which provide, so far as is relevant:

“(1) an application under section 476 must:

(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act (1976); and

(b) be lodged with the registry of the Federal Court within 28 days of the applicant being notified of the decision.”

Mr Mosley, who appeared as counsel for the Minister, argued that the sending of the letter by the applicant to the Refugee Review Tribunal was not a lodgment with a registry of the Federal Court.  He also argued that the form of the application did not comply with s 478(1)(a).  In Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327, 330, the Full Court held that receipt of an application for review via facsimile transmission to a facsimile machine located in the registry of the court was a lodgment under s 478. The Court said:

“What will suffice to satisfy that requirement that a document be ‘lodged’ with a registry?  The word ‘lodge’ appears to us to have no special or technical meaning.  It is then to be given its ordinary meaning.  A reference to the Oxford English Dictionary shows that the word has a number of meanings but two appear apposite.  They are:

‘(c) Deposit in a specified place of custody or security.
(e) Deposit in court or with an official a formal statement of (a complaint, objection etc); bring forward, allege, (an objection etc).’

In accordance with these meanings an application to review will be ‘lodged’ when it comes into the possession of a registry or the staff of a registry.  The means by which possession is obtained does not matter.  It could come about when an application is delivered into the hands of the registry staff or, if the application is posted, when it is received by the registry.  When an application to review is sent by facsimile transmission to a facsimile machine that is located in the registry the application will be in the possession of the registry when the transmission is complete.”

It seems to me that this decision concludes this case.  The letter from the applicant was not received by the Federal Court.  It was therefore not lodged with the Court.  As the applicant does not suggest that he complies with any other criteria in clause 050.212, his application to review the decision of the Immigration Review Tribunal is hopeless.  As a result the application must be dismissed.

In relation to the question of costs, there are a number of considerations.  As Mr Mosley rightly points out, the Minister has been successful in the application, and the nature of the Minister's objection to the application was made clear early in the piece.  Those factors militate in favour of the Minister receiving his costs including the costs of the motion for dismissal.  On the other side of the ledger is the consideration that the problem, which underlies the fact that Mr Elci does not have an application for review on foot, may well have been caused by two actions which were not his own. The first action was the unfortunate formulation of the terms of the letter from the Refugee Review Tribunal referring to the Federal Court of Australia but not directing an uninstructed person unfamiliar with the language to the proper place for lodgment of an application to the Court.  The second action was the failure of the Refugee Review Tribunal to forward the applicant's letter to the Court upon receipt and, thereby, perhaps ensuring that it was lodged within the terms of the section.

I have decided in the end that the Minister should have his costs.  I do so because, whilst it seems likely that the applicant was ill served by the form of the letter and the actions of the Refugee Review Tribunal administration, neither of these factors have been the subject of any direct evidence from Mr Elci.  Had he explained to the Court how it happened that he sent the letter to the Refugee Review Tribunal, had he explained that he was in fact misled, I may have taken a different view in relation to costs. In the absence of such evidence, the ordinary rule that costs follow the event should be applied.

ORDERS:

The motion, notice of which was filed by the applicant on 4 June 1998, is dismissed.

The applicant is to pay the respondent's costs of and incidental to the application including the motion, notice of which was filed by the respondent on 22 June 1998.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:             31/07/98

Counsel for the Applicant:	Mr T. A. Fernandez
Solicitor for the Applicant:	Nathan Legal Practitioner
Counsel for the Respondent:	Mr W. Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 July 1998
Date of Judgment:	31 July 1998