Hasan v Minister for Immigration and Multicultural Affairs

[1999] FCA 807

FEDERAL COURT OF AUSTRALIA

Hasan v Minister for Immigration & Multicultural Affairs [1999] FCA 807

MD MEHEDI HASAN v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

N 350 OF 1999

EMMETT J
11 JUNE 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 350 OF 1999

BETWEEN:	MD MEHEDI HASAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	11 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed as incompetent.

2.        There be no order as to the costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 350 OF 1999

BETWEEN:	MD MEHEDI HASAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	11 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application for an order of review brought by Mr Mohamed Mehedi Hasan.  The application purports to seek review of a decision of the Minister of Immigration & Multicultural Affairs (“the Minister”) notified on 26 March 1999.  The applicant is a national of Bangladesh and, on 15 August 1996, lodged an application for a protection visa.  On 5 May 1997, a delegate of the Minister decided that Mr Hasan was not a refugee and, accordingly, was not entitled to a protection visa.  A letter dated 5 May 1997 was sent to Mr Hasan advising him of the delegate’s decision.

2. On 11 June 1997, the Refugee Review Tribunal (“the Tribunal”) received an application for review of the delegate’s decision.  On 9 September 1997, the Tribunal decided that it did not have jurisdiction to review the decision refusing to grant the applicant a protection visa.  The basis for that decision was the Tribunal’s conclusion that Mr Hasan’s application to the Tribunal was out of time.  An application for review of a decision of the Minister must be lodged with the Tribunal no later than 28 days after notification of the decision.  There is no provision for extension of time. 

3. It appears that an application for review of the Tribunal’s decision was lodged with this Court on behalf of Mr Hasan.  Subsequently, that application was withdrawn.  Mr Hasan made a further application to the Tribunal on 17 September 1997.  It is not clear whether that application was before or after the application to this Court.  The application was apparently a request for the Tribunal to review its decision that it did not have jurisdiction to review the decision of the delegate. 

4. For reasons that are not explained, the Tribunal wrote to Mr Hasan by letter of 26 March 1999 referring to the review application lodged on 17 September 1997.  The letter went on to say as follows:

   “Our records show that on 11 June 1997 you applied to the Tribunal for review of a decision of the Department of Immigration and Multicultural Affairs […] refusing a Protection Visa (refugee status).The Tribunal finalised your case on 10 September 1997 as ineligible lodged out of time.

   As there is no other decision by the Department, your application for review cannot be accepted by the Tribunal as it has no jurisdiction to consider a decision which has already been reviewed.

   You may have a right of review of this decision in the courts.An application for such review, in the case of the Federal Court of Australia, must be made within 28 days of the notification of this decision.You should seek independent advice if you wish to pursue this or any other right available to you.”

5. The language of the Tribunal’s letter is unfortunate.  If the expression “this decision” in the last paragraph refers to a “decision” communicated by the letter that the Tribunal has no jurisdiction to consider its earlier decision, the letter appears to be wrong in saying that there might be a right of review in the courts.  The letter does not, in my view, communicate any decision of the Tribunal.  It is no more than a statement to Mr Hasan that the Tribunal is functus officio in relation to his application for review and it is not open to the Tribunal to consider further the question which it disposed of on 9 September 1997.  That being so, there would be no relevant decision of the Tribunal which could be the subject of review by this Court.  That appears to me to be the only way of making sense of the letter and, in those circumstances, the statement that there was a right of review of “this decision” is clearly wrong.

6. If, on the other hand, “this decision” was a reference to the decision given on 9 September 1997, while there was a right of review to this Court in respect of that decision, that right of review was taken up and subsequently withdrawn.  It is certainly, now, no longer open to Mr Hasan to seek to have this Court review the decision given on 9 September 1997.

7. Either way, the application presently before me is misconceived and should be dismissed as incompetent.

8. The circumstances which gave rise to Mr Hasan’s plight appear to be unfortunate.  I have before me the application which was made to the Tribunal for review of the original decision of the delegate.  That application includes a statutory declaration dated 22 May 1997.  Mr Hasan has informed the Court, and the Minister has not disputed his assertion, that he left the submission of the application to the Tribunal to his solicitors, Messrs Leitch Hasson and Dent.  He asserts that the application was forwarded by mail and that it must have been delays in the postal service which resulted in the application being received out of time. 

9. Be that as it may, the decision of the Tribunal appears to be correct, with the consequence that Mr Hasan has not had the opportunity of having the original decision of the Minister's delegate reviewed on the merits.  That is not something which this Court has jurisdiction to interfere with.  However, it would be open to Mr Hasan to seek to have the Minister’s indulgence in relation to his position. 

10. Under section 417 of the Migration Act, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.  Under section 415, the Tribunal may exercise all the powers and discretions that are conferred by the Act on the person who made the decision and the Tribunal may affirm the decision, vary the decision or admit the matter for reconsideration.  Whether this is an appropriate case for the Minister to consider under section 417 is a matter for the Minister and his advisers.  By referring to the section, I should not be understood as indicating any view about whether the Minister can or should entertain any application under section 417.

11. Section 48A of the Migration Act provides that a non-citizen who, while in Australia, has made an application for a protection visa, may not make a further application for a protection visa whilst still in Australia.  However, section 48A is expressed to be subject to section 48B which provides that, if the Minister thinks that it is in the public interest to do so, the Minister may, by notice, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending on the end of the seventh working day after the day on which the notice is given. 

12. Once again, by referring to section 48B, I should not be understood as indicating any view as to whether the Minister should or can entertain any application by Mr Hasan.  However, it is, as I have said, unfortunate if it be the case that Mr Hasan has been deprived of the opportunity of having his case considered on the merits by the Tribunal by reason of the failure of his legal advisers to dispatch the application in time or by delays in the postal service in delivering the application in time.

13. In the light of the contents of the letter from the Tribunal of 26 March 1999, the solicitor for the Minister does not ask for an order for costs in the proceedings.  I consider that that course is a proper one in the circumstances.  The matter first came before me a week ago.  At that stage, I directed that Mr Hasan indicate the decision which he seeks to have reviewed by this Court.  That resulted in the submission which has been marked as exhibit 1A in the proceedings.  That submission indicates that the application was prompted by the Tribunal’s letter which, as I have said, appears to me to be incorrect.  In the circumstances, I dismiss the application as incompetent.  I direct that there be no order as to the costs of the proceedings.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             11 June 1999

The applicant appeared in person.
Solicitor for the Respondent:	Andras Markus of the Australian Government Solicitor
Date of Hearing:	11 June 1999
Date of Judgment:	11 June 1999