Waim v Minister for Immigration - [2004] FMCA 33

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIM v MINISTER FOR IMMIGRATION

[2004] FMCA 33

MIGRATION – Protection visa – time limits for filing application – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36, 441A, 441C, 474(1), 474(2),477, 477(1), 477(2), 478, 486A

S157/2002 v Commonwealth of Australia [2003] 211 CLR 476; 195 ALR 24

Caritativo v MIMIA (2001) FCA 1873
Hong v MIMIA (1998) 153 ALR 327
Kucuk v MIMA (2001) FCA 535
Abidin v Minister for Immigration & Multicultural Affairs (2002) FCA 236
WAFE of 2002 v MIMA (2002) FCAFC 254
W281 v Minister for Immigration & Multicultural Affairs (2002) FCA 419
Salehi v MIMA (2001) FCA 995

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Nand v Minister for Immigration & Multicultural Affairs (2002) FCA 1521
Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

SAAD v Minister for Immigration and Multicultural Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003)
FCA 499
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129

Applicant:

WAIM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ256 of 2002

Delivered on:

5 February 2004

Delivered at:

Perth

Hearing Date:

28 April 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person by video link (assisted by an interpreter)

Counsel for the Respondent:

Mr J Allanson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application filed 21 August 2002 be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $10,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 256 of 2002

WAIM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Applicant seeks review of a decision by the Refugee Review Tribunal (the RRT) made on 22 July 2002 where it affirmed a decision not to grant the Applicant a protection visa.
The Applicant had arrived in Australia on 7 March 2001. He sought a protection (class XA) visa on the basis of a claimed well-founded fear of persecution in Afghanistan. His claim for a visa dated 7 April 2001 was supported by a statement of same date whereby the Applicant claimed:
(a)he is Shi’a Muslim and ethnically a Hazara. He came from the Ghanzi province in Afghanistan;
(b)he left Afghanistan because of the persecution of the Hazara by the Taliban, including the sending of young Hazara to the front line to fight against Masood (the Northern Alliance), and to clear land mines;
(c)the Taliban had wanted to take him, but his father had paid a bribe to have him released – he then fled Afghanistan.
A further statement made by the Applicant on 18 February 2002 addressed issues which had arisen in the context of the fall of the Taliban. The Applicant claimed that:-
(a)Hazara people had been persecuted before the Taliban and it would continue under a government of Tajiks and Pashtuns;
(b)Shi’a Muslims were persecuted because the Tajik and Pashtun were Sunni Muslims;
(c)incidents were still occurring against Hazara and safety and security could not be guaranteed;
(d)in his home village, nomad Pashtun would come and graze their animals on Hazara pasture and kill the land owner if he protested.
On 18 April 2002, the Applicant was advised that the delegate had refused the Application. The delegate was not satisfied that the Applicant was a national of Afghanistan.
By Application dated 19 April 2001, the Applicant sought review of the delegate’s decision by the RRT.
The Applicant supported his Application to the RRT by reference to very detailed submissions prepared for and on his behalf by solicitors then acting on his behalf, together with the Applicant’s own submissions in support of his claim. Those submissions included a very detailed analysis of the linguistic evidence which had been relied upon by the delegate but further referred to the situation in Afghanistan following the fall of the Taliban after 11 September 2001. Specifically, it was submitted for and on behalf of the Applicant that, “although the Taliban had been displaced from power, the Applicant still fears that he will suffer at their hands, or at the hands of whatever group emerges from its followers”. Reference was made to newspaper reports and other material in support of that submission. The Applicant had further submitted that the current administration in Afghanistan was incapable of offering protection to the Applicant in his area and that the Applicant feared persecution at the hands of members of the current administration in that area. Further submissions were enclosed with a covering letter dated 19 June 2002 for the attention of the RRT. It is sufficient to note that the submissions provided for and on behalf of the Applicant by his then solicitors were thorough and detailed. Even after the hearing the Applicant’s solicitors provided further documents to support the Applicant’s claims.
The RRT in its decision dated 22 July 2002 affirmed the delegate’s decision to refuse to grant a protection visa. The RRT however did find that the Applicant was a Hazara and a Shi’a from Afghanistan and that he fled Afghanistan because as a Hazara and Shi’a he faced persecution for reasons of race and religion. The RRT did not accept that nothing had changed with the fall of the Taliban and was not satisfied that the Hazara in Ghanzi were at risk of persecution in the foreseeable future. It was not satisfied that the Applicant would face a real chance of persecution from the Pashtun or any other groups including remnant Taliban should the Applicant return to Afghanistan.
The Application seeking review of the RRT decision was originally filed in the Federal Court of Australia and was transferred to the Federal Magistrates Court on 28 November 2002.
By a notice of motion dated 4 December 2002 the Respondent sought orders that the Application be dismissed and that the Applicant pay the Respondent’s costs of the Application. In support of that notice of motion, the Respondent relied upon an Affidavit of Anthony Clifton Willinge sworn 4 December 2002 and provided submissions in writing dated 4 December 2002. Essentially the Respondent sought to raise the issue that the Application was filed out of time and should therefore be dismissed. The RRT decision having been handed down on 22 July 2002 which is the day the decision was transmitted by facsimile to the Applicant at the Curtin IRPC on 22 July 2002, meant that the Applicant was taken to have received the decision at the end of that day pursuant to s.441C of the Migration Act 1958 (Cth) (the Act). The RRT it was submitted was able to give the Applicant a copy of the decision “by any method that it consider[ed] appropriate (which included) by one of the methods mentioned in s.441A”. It was also noted that a copy of the RRT decision was transmitted to the Applicant’s then solicitors, as the Applicant’s authorised recipient and this is said to have occurred by facsimile on 22 July 2002. As the Applicant is taken to have received the decision on 22 July 2002 it was submitted that any Application to the Court to review the RRT decision should have been lodged no later than 19 August 2002. This would comply with the requirement of s.477(1) of the Act which requires an Application to be “within 28 days of the notification of the decision”. It is appropriate to set out s.477 as follows:-
“(1)An application to the Federal Court under section 39 of the Judiciary Act 1903 for:
(a) a writ of mandamus, prohibition or certiorari; or

(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.
(1A) An application to the Federal Magistrates Court under section 483A for:
(a) a writ of mandamus, prohibition or certiorari; or

(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.
(2) The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection.
(3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
It was submitted that having regard to s.477(2), the Court is not able to make an order allowing the Application to be lodged out of time.
When the matter came before the Court on 10 January 2003, the Respondent was ordered to file and serve any further written submissions concerning admissibility of evidence and/or support of any Application to adduce further evidence in relation to its notice of motion. The notice of motion was otherwise adjourned for further hearing on 3 February 2003. The reason for the adjournment and the requirement to make further submissions was that the affidavit which had been relied upon by Mr Anthony Clifton Willinge, at lease prime facie, appeared to raise evidentiary issues concerning service of the RRT decision and the issue of the date upon which it is suggested the Application to the Federal Court by the Applicant had been lodged.
A matter of concern to the Court upon examination of the Court file was that the Application before the Federal Court was undated save for the year “2002”. There was a Court stamp affixed to the Application indicating that it was filed on 21 August 2002. Another stamp on the Application form indicating that the document had been filed on

27 August 2002 had been crossed out and initialled presumably by a court officer. The Application had a facsimile imprint bearing the date “27/08/02 13:16”. On examination of the correspondence file the Court noted that an Application for fee exemption had been lodged in the Federal Court. That document which became exhibit A1 at the hearing was date stamped “received 21 August 2002”. Again, a date stamp “received 27 August 2002” had been crossed out and initialled by a court officer. Unlike the Application for review, the Application for fee exemption was dated and signed by the Applicant. The date on the declaration was “19-08-02”. The Application for fee exemption also had printed a facsimile imprint of “21/08/02 13:17”.
It was in the context of those imprinted dates and stamps together with the hand written date of 19 August 2002 that I regarded the matter of such significance that an opportunity should be given to the parties to ensure that appropriate evidence was placed before the Court concerning lodging of the Application for review having regard to what appeared to be a statutory intention to prevent courts from granting an extension of time. Accordingly, further submissions dated 23 January 2003 were filed by the Respondent and essentially it was argued that the date upon which the Court should accept as being the date when the Application for review was lodged was either 21 or 27 August 2002 and, in either event, it was outside the 28-day period provided by the Statute. Accordingly it was submitted the Applicant’s Application is out of time and could not possibly succeed as the Court had no jurisdiction in this matter. Reliance was placed upon a further affidavit of Leena Denny sworn 23 January 2003. In her affidavit Ms Denny who is an employee of the RRT referred to the receipt of the Application for review from the Applicant by the RRT and otherwise referred to the address for service and the identity and address of the Applicant’s then solicitors. The RRT decision was exhibited to that affidavit. The deponent further stated that on 22 July 2002 she sent to the Applicant by way of facsimile, a copy of the decision and four page letter of the same date notifying the Applicant of the decision. She further deposes that on the same day she forwarded to the then solicitors of the Applicant by way of facsimile, a copy of the decision and the first page of the letter of the same date.
When the matter came before the Court on 3 February 2003 a further adjournment to 6 February 2003 was allowed with the Respondent to file and serve submissions by 5 February 2003. On 6 February 2003 relying upon submissions of the same date the Respondent quite properly referred to the then recent decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] 211 CLR 476; 195 ALR 24 (Plaintiff S157). The Respondent submitted that there should be a further adjournment of the notice of motion with costs reserved while still maintaining that the Application for review should have been lodged no later than 19 August 2002 pursuant to s.477 of the Act. The adjournment, however, was required in circumstances where it was noted that since the High Court decision in Plaintiff S157 it would be appropriate for the Court to consider whether there is in fact, a jurisdictional error evident on the material before the Court and, having decided that issue to then proceed to consider whether the time limit of 28 days applies to the current Application. It was submitted that s.477(1) of the Act is to the same effect as the former s.478 and decisions in relation to the former s.478 should be applied (See Caritativo v MIMA (2001) FCA 1873 (17 December 2001). Reference was also made to the supplementary explanatory memorandum to the Migration Legislation Amendment (Judicial Review) Bill 1998 at paragraph 29. That paragraph provides:-
“29. The effect of the amendment is that an application to the Federal Court for judicial review of certain reasons must be made to the Federal Court rather than the Registry of the Federal Court.”
It was submitted that an Application is “made to the Federal Court when it comes into the possession of the Federal Court or the staff of the Federal Court”. An Application sent by facsimile will be in the possession of the Federal Court when the transmission is complete. (See Hong v MIMIA (1998) 153 ALR 327; Kucuk v MIMA (2001) FCA 535 and Abidin v MIMA (2002) FCA 236).
It was submitted that in the present case there is no direct evidence establishing that the Applicant prepared his substantive Application before 21 August 2002 or that he endeavoured to make the Application before that date. In any case even if it could be established that the Applicant had done all within his power to comply with the statutory time limit but was unable to lodge his Application within time through no fault of his own then that would not alter the position (see Abidin v Minister for Immigration & Multicultural Affairs (2002) FCA 236, WAFE of 2002 v MIMA (2002) FCAFC 254; W281 v MIMA (2002) FCA 419 and Salehi v MIMA (2001) FCA 995). It was submitted therefore that further factual enquiry was not necessary but if the Applicant wishes to raise those matters he should do so by affidavit.
In dealing with matters of this kind since the High Court decision in Plaintiff S157 the Respondent submitted that the Court should have regard to what the High Court had stated particularly in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ who concluded that s.486A of the Act would not apply to a decision where there had been jurisdictional error (see paragraph 87). In that decision the Court indicated that a consequence of that conclusion was that it would be impossible to determine whether s.486A had operationed any particular case until it had been decided whether or not the decision in question involved jurisdictional error (see paragraph 88). The Respondent claimed it is therefore arguable that the same approach should be taken to s.477 of the Act and that accordingly, it is necessary in determining the Respondent’s notice of motion in the present case to decide whether or not the decision complained of by the Applicant involved jurisdictional error in the sense described by the joint judgment of the High Court in Plaintiff S157.
Having made those submissions, the matter was then further adjourned on 6 February 2003 to be heard on 28 April 2003. Leave was granted for the Applicant to request pro bono assistance. When the matter was heard on 28 April 2003, the Applicant was not represented as a legal representative could not be obtained under the Court’s pro bono assistance scheme. The Applicant was assisted by an interpreter though it should be noted that throughout the hearings the Applicant has demonstrated a sufficient command of English to not require interpretation of all of the proceedings but only those matters where he expressed some difficulty understanding what had been said in open court. The Applicant was granted leave to file and serve an affidavit in relation to the preparation and/or filing of his Application having regard to the fact that the Application is undated and the dispute over the date upon which it was provided by the Applicant to the authority at the detention centre for forwarding to the Court.
When the matter resumed on 28 April 2003, the Respondent in accordance with orders made by the Court had filed further submissions in writing upon which the Respondent sought to rely. The Applicant had not provided any further material.
During the course of submissions made for and on behalf of the Respondent the chronology of events was referred to and again it was asserted that the Applicant had lodged the Application two days outside the 28 day time limit imposed by s.477(1) of the Act and it was noted in the Application that by merely stating, “I am not satisfied.

I seek for justice from Honourable Judge”, the Application did not provide any grounds for review.
It was conceded, however, that even with an unsatisfactory Application of that nature, it is appropriate for courts to at least consider the issue of jurisdictional error based upon either material before the court and/or matters brought to the court’s attention by either party on the day of the hearing.
Hence general submissions were made in relation to the prospect of there being a jurisdictional error and it was conceded that that matter should be dealt with prior to considering the issue of whether the Application had been lodged in time.
In relation to the time of lodging of the Application, the Applicant asserted that he had indeed both signed the Application for review and the Application for fee exemption on the same date namely, 19 August 2002 and had given those documents to an appropriate officer at the detention centre to be filed by facsimile. It is noted that 19 August 2002 was a Monday and there is no evidence before the Court to contradict the Applicant’s assertion. Quite properly the Respondent’s Counsel was prepared to accept that the Court may make a finding that, both documents had been duly completed by the Applicant on

19 August 2002 and that he had handed those documents to an appropriate officer for the purpose of filing with the court. Both the Applicant and the Respondent conceded the court could rely upon the facsimile date imprint on each document and find therefore that the documents had been received by the Federal Court on 21 August 2002. The Respondent had indicated that it would be desirable to consider the question of jurisdictional error in any event because it may at least be arguable that if there was a jurisdictional error the compliance with any time limit may become irrelevant.
In relation to the jurisdictional issue, the Respondent submitted that the court should not examine the RRT’s reasons, it should not construe those reasons “minutely and finely with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). It was submitted that if a decision of the RRT was so affected by jurisdictional error, so as to be in law, no decision at all then it was not a “privative clause decision” within the meaning of s.474(2) of the Act (see Plaintiff S157). If, however the decision was not so affected then provided the three Hickman conditions are satisfied s.477 applies and the court may not make an order the effect of which is to allow the Applicant to lodge the Application outside the time limit, and s.474(1) would apply to the review.

In the present case it was submitted the findings of the RRT were based on an assessment of whether the Applicant had a real chance of persecution should be return to Afghanistan. It was submitted the RRT correctly made its assessment on the basis of the position in Afghanistan at the time of the decision following the significant changes which had occurred since the Applicant left Afghanistan. It was noted that whilst the circumstance at the time when the Applicant left Afghanistan may be relevant to his claim for protection, “The question of whether or not a person is a ‘refugee’ for the purpose of the Convention is to be determined having regard to the circumstances existing in the country of nationality at the time when the determination is made” (see Nand v Minister for Immigration & Multicultural Affairs (2002) FCA 1521 at paragraph 19 per Kenny J).
It was submitted that the Applicant through his legal advisers had clearly made submissions of the risks he still faces as an Hazara in Afghanistan and the RRT considered those submissions in the light of the country information. In making the enquiry, the RRT acted within its jurisdiction and accordingly, in the absence of jurisdictional error the decision is a privative clause decision under s.474(2). The Application has been made out of time, and therefore should be dismissed as incompetent. In any event, in the absence of jurisdictional error there is no basis upon which the court should uphold the Application for review. This Application it was submitted should be dismissed with costs.
After making submissions and relying upon those submissions in writing by the Respondent, the Applicant indicated a desire to endeavour to make submissions in writing to the Court. In the circumstances, I was prepared to allow that course to be followed based upon a strict time frame. The Applicant was to provide written submissions on or before 5 May 2003 and the Respondent was then given a chance to reply on or before 12 May 2003.
The Court has subsequently received written submissions and/or material from the Applicant. The first document appears to be an email message purportedly from the Applicant, and forwarded by the Respondent to the court by facsimile message dated 14 May 2003. The email message purportedly sent 29 April 2003 refers to various reports which might properly be described as country information concerning Afghanistan. The email has a notation purportedly from the Applicant suggesting he would send a submission on 1 May 2003 to the court. A handwritten submission was forwarded to the court by the Respondent from the Baxter Detention Centre by facsimile message dated 1 May 2003. The Applicant refers to the RRT decision and seeks to challenge the decision that he did not have a well founded fear of being persecuted for a convention reason in Afghanistan. He otherwise refers to country information and daily reports from Afghanistan and asserts that if he returned he would be “executed immediately as an apparent minority group of Shi’a Hazara Muslim and as a sworn enemy.” By facsimile message dated 12 May 2003, the Respondent indicated it did not wish to make any further submissions in reply to the material then lodged by the Applicant. By facsimile message dated 13 August 2003 forwarded by the Respondent from the Baxter Detention Centre the court received a further letter from the Applicant. In that letter he asserts that when he arrived in Australia he had a fear of persecution from the Taliban and that a decision was made by the RRT after the Taliban lost power. He otherwise refers to the chronology of events and the change of case officers and requests the court to give the matter further consideration. It did not seem necessary to the court to seek any further submissions from the Respondent in relation to that item of the correspondence.

Reasoning

In my view, it is a matter of some regret that the Respondent as a model litigant initially chose to agitate and rely upon the issue of failure of the Applicant to allegedly lodge the Application for review out of time. I am prepared to find that the Applicant had duly completed the required documents on 19 August 2002 and that those documents had been handed to an appropriate officer of the Respondent for the purpose of filing the documents with the Federal Court. Ultimately, the documents were not filed until 21 August 2002. Had they been filed on 19 August 2002 then they would have been filed within the 28 day period required. I note however, that I am bound by various authorities to which I have been referred and given the matter received a considerable amount of court time, at least initially, I note the comments of French J in W281 v Minister for Immigration and Multicultural Affairs (2002) FCA 419 and in particular paragraphs 39 and 40 of that decision as follows:
“39 In Abidin v Minister for Immigration & Multicultural Affairs FCA [2002] 236, an application for review had been placed within time in the departmental box at the Port Hedland Detention Centre. The twenty eight day period applicable in that case expired on 5 December 2000. However, the application was not received by the Court at its Perth Registry until 7 December 2000. The primary judge, Heerey J, upheld an objection as to competency - Abidin v Minister for Immigration & Multicultural Affairs [2001] FCA 842. Argument in the Full Court centred on whether the application could be said to have been "lodged" when the applicant had done all that he was able to do to achieve substantial compliance with the requirements of lodgment within the stipulated period. The Court rejected the contention that an application was "lodged" in those circumstances. It said at [11]:
‘In our opinion, an application is not lodged until it comes into the possession of a Registry or the staff of a Registry. This is the inevitable result of the ordinary meaning of the words of the provision (Francis v City of Ringwood (1978) 54 LGRA 323). There is no such concept as constructive lodgment although, as Hong [Ye] shows, there may be room for debate as to whether in particular circumstances in which a document comes to a Registry it is "lodged". ... We do not see any relevant difference between "lodgment with" and "lodgment at" a Registry.’
40 The draconian operation of the time limit provisions of the Act illustrates the proposition that absolute, one size fits all, time limits are capable of giving rise to injustice in particular cases. Section 478(1)(b) and the authority of the decisions to which I have referred, leave the Court no room to move on this jurisdictional question. The objection to competency must therefore succeed.”
In any event, I am prepared to consider as suggested by the Respondent the issue of jurisdictional error as it is at least arguable that in the event of jurisdictional error being found to exist then the time limit may not be relevant. I understand that an issue is currently pending in the High Court of Australia concerning time limits though for the present purposes, as will become evident in this judgment, it is not necessary for me to delay any further the delivery of this judgment. Even if I am wrong in deciding that the lodging of the Application is out of time it does not prevent me from considering the broader issue of jurisdictional error, which is appropriate to do so in any event, given the submissions made for and on behalf of the Respondent and matters raised by the Applicant.
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
On a proper analysis of the Application and submissions made on behalf of the Applicant, it is clear to me that he is dissatisfied with the findings of fact by the RRT. I can see nothing in the material which would establish jurisdictional error. accept the Respondent’s submissions that in this Application, the RRT cannot be said to have misunderstood the nature of its jurisdiction or misconceived its duty or indeed failed to apply itself to the question which s.36 of the Migration Act prescribes nor that it misunderstood the nature of the opinion which it was to form. Essentially the RRT has made findings of fact. To some extent they were of benefit to the Applicant in the sense that the RRT accepted the Applicant is a Shi’a Hazara and a citizen of Afghanistan and that he lived in Afghanistan until he departed for Australia. It is a matter of fact for the RRT to determine whether since the fall of the Taliban the Applicant can be said to be a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee’s protocol.
A proper reading of the RRT’s decision indicates that it has given due consideration to all relevant matters in reaching its decision and although some more recent updated material is sought to be relied upon, it is my view that on an Application of this kind it is not appropriate for the court to receive updated evidence or material unless that material is directly relevant to the issue of jurisdictional error. This not a hearing de novo or a hearing whereby the court considers the merits of the Application.
In the circumstances, whilst there has been a regrettable delay in this matter and issue of the alleged failure to lodge the Application in time has been agitated extensively, it is my conclusion that in any event there is no jurisdictional error of a kind which would enable this court to make a finding that the decision of the RRT should be set aside.
The decision of the RRT was made at the time based upon material then available to it and in my view, the RRT properly analysed the information and reached a decision which was reasonably open to it based on the material then available.
To the extent that it is necessary for me to make findings in relation to the filing of the application I am prepared to accept that the decision of the RRT had been received at the end of the day, that is 22 July 2002 when it was faxed to the applicant (see s.441C of the Migration Act).

I further accept that the application to the court to review the RRT decision should have been lodged no later than 19 August 2002 in order to comply with the 28 day requirement of s.477(1) of the Migration Act. Despite my own reservations shared with the Federal Court Justices in decisions to which I have referred, I accept that this court does not have power to make an order allowing the application to be lodged out of time. Despite the confusion on the dates and although I am prepared to accept that the application was dated 19 August 2002 I would otherwise find that unfortunately it was not filed until

21 August 2002. The delay between the date of the application and its filing does not appear on the material before me to be through any fault of the applicant and it is a matter of some regret that the authorities did not have in place some system to ensure that the filing occurs expeditiously to ensure that time limits are observed and applicants not prejudiced. This is particularly important when applicants depend significantly upon the good will and efficiency of the officers and the authorities who are responsible for the detention of applicants. Nevertheless it is clear that the application in any event has been filed out of time and therefore technically in the absence of jurisdictional error I should not entertain the application as I have no power to extend the time for lodgment.

For those reasons it follows that the order of the court should be that the Application be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 5 February 2004