Husseini v Minister for Immigration and Multicultural Affairs

[2001] FCA 850

FEDERAL COURT OF AUSTRALIA

Husseini v Minister for Immigration & Multicultural Affairs [2001] FCA 850

Migration Act 1958 (Cth) s 478

Nirmalan v Minister for Immigration & Multicultural Affairs (Beaumont, Branson and Emmett JJ, 14 May 1998, unreported)

Kucuk v Minister for Immigration & Multicultural Affairs (Healy J, 10 May 2001, unreported)

MEHRDAD YOUSEF HUSSEINI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 189 of 2001

RD NICHOLSON J
19 JUNE 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 189 of 2001

BETWEEN:	MEHRDAD YOUSEF HUSSEINI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	19 JUNE 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

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	W 189 of 2001

BETWEEN:	MEHRDAD YOUSEF HUSSEINI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	19 JUNE 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant brings an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision of the Tribunal sought to be reviewed is a decision not to grant the applicant a protection visa.

2. The applicant, who is a citizen of Iran, arrived in Australia on 12 July 2000.  He applied for a protection visa on 18 July 2000.  A delegate of the respondent refused the application on 1 September 2000.  The Tribunal affirmed the delegate's decision on 17 October 2000.  The Federal Court set aside that Tribunal decision on 8 December 2000.  The matter was remitted to the Tribunal and on 18 April 2001 the Tribunal, differently constituted, affirmed the decision not to grant a protection visa.

3. In his application the applicant states that he was notified of the Tribunal's decision on 20 April 2001.  He has not resiled from and indeed has confirmed that position at this hearing.

4. A notice of objection to competency is now brought on behalf of the respondent in respect of the application.  The Court has no jurisdiction under the Migration Act 1958 (Cth) (“the Act”) to review the decision made by the Tribunal on 18 April 2001 because the application was not lodged with a registry of the Federal Court within 28 days of the applicant being notified of the Tribunal’s decision.

5. The requirement in respect of that time limit arises from s 478 of the Act and specifically from s 478(1)(b). Additionally subsection (2) of the same section provides:

   “(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).”

   Additionally s 485 provides that the Federal Court does not have any other jurisdiction in relation to applications other than that given to it by the Part or the Judiciary Act which is not here relevant.  These provisions have been enacted by Parliament as an expression of the public political will, and it is the duty of the Court to give effect to them as part of the law which the Court is bound to apply.

6. The applicant contends that the reason that his application was filed out of time was that the Department of Immigration and Multicultural Affairs failed to get the application form to him in time.  Although the applicant initially maintained he had a departmental letter giving him undertakings in relation to supply and filing of his application, he was unable to produce the letter despite being given a lengthy opportunity by way of adjournment to do so.  He also maintained that three persons who had competence in the English language had contacted the department on his behalf in an endeavour to obtain the form for him.  Even if I accept that to be the position it cannot assist the case for the applicant.

7. There are many authorities of this Court which make it apparent that the provisions I have previously referred to cannot be set aside or not applied because of circumstances such as those referred to by the applicant.  This was recognised by the Full Court in Nirmalan v Minister for Immigration & Multicultural Affairs (Beaumont, Branson and Emmett JJ, 14 May 1998, unreported).  In Kucuk v Minister for Immigration & Multicultural Affairs (Healy J, 10 May 2001, unreported), the Court applied the provisions I have referred to in circumstances where the applicant's case was that a detention centre had failed to fax his application in the manner which he had requested.

8. I find firstly that the application was filed with the Court on 22 May 2001.  That is the date on which the application is endorsed as having been filed and is consistent with the date of the fax endorsement which it also bears.

9. I secondly find that the application in its terms is one made pursuant to s 476 of the Act. It is therefore one to which s 478 has application.

10. I find thirdly that the Tribunal having given its decision on 18 April 2001, the due date for filing within 28 days of notification on 20 April required that the application be lodged with the Court on or before 18 May 2001.

11. Accordingly it follows, and I find as a fact, that the application was lodged outside the time limit provided for by s 478(1)(b) of the Act.

12. It follows that the notice of objection to competency must be upheld.  It follows the Court does not have jurisdiction to hear the applicant's application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.

Associate:

Dated:             4 July 2001

The applicant represented himself
Counsel for the Respondent:	Ms SC Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 June 2001
Date of Judgment:	19 June 2001