Khamisi v Minister for Immigration and Multicultural Affairs [2001] FCA 1429 (21 September 2001)

Last Updated: 15 October 2001

FEDERAL COURT OF AUSTRALIA

Khamisi v Minister for Immigration and Multicultural Affairs [2001] FCA 1429

FARID KHAMISI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S88 of 2001

RASMIE KHAMISI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S89 of 2001

von DOUSSA J

21 SEPTEMBER 2001

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S88 OF 2001

BETWEEN:	FARID KHAMISI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	21 SEPTEMBER 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. No order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S89 OF 2001

BETWEEN:	RASMIE KHAMISI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	21 SEPTEMBER 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. No order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY

No.	S88 OF 2001
BETWEEN:	FARID KHAMISI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
No.	S89 OF 2001
BETWEEN:	RASMIE KHAMISI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	von DOUSSA J
DATE:	21 SEPTEMBER 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 There are two applications before the court seeking judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of decisions made by the Refugee Review Tribunal (RRT) on 21 May 2001 which affirmed earlier decisions not to grant each of the applicants protection visas. The applicants are citizens of Iran. They are related. They arrived in Australia on 1 January 2001, and at all material times thereafter they have been in detention. At present they are in detention at the Woomera Immigration Reception and Processing Centre, which I shall refer to as "the centre".

2 On 28 June 2001 the applications were filed in this court seeking judicial review accompanied by short affidavits and a letter from an interpreter at the centre. The applications were in the English language and sought review of the RRT's decision, but did not spell out detail of any legal error in the decisions such that a ground for review under s 476 of the Act was identified. There may, however, be such a ground, but the proceedings have not reached a point where it is possible to determine whether that is so or not.

3 When the matters first came on for a directions hearing there was already on file in each matter a notice of objection to competency on the ground that each application was filed outside the 28-day time limit imposed by s 478 (1)(b) of the Act.

4 As I have mentioned, the applications, when filed, were accompanied by a letter from an interpreter at the centre. The interpreter indicated that he appreciated that the forms were out of time when sent to the Federal Court and he offered an explanation for why the delay in filing them had occurred. There was also a supporting affidavit filed by a solicitor acting for the Minister giving other background facts.

5 With the benefit of those documents it appeared at the time of the first directions hearing that the reasons for decision of the RRT had been given to each of the applicants on 23 May 2001. On 1 June 2001 the applicants consulted the interpreter, who speaks the Farsi language of the applicants. The interpreter explained to them that he was going to be away the following week in Port Hedland and then on sick leave for a leg injury, but that he would help them fill out the forms on his return, which would still be within the 28-day period. Regrettably, the interpreter's absence on account of ill-health was longer than expected, and he did not return to work at the centre until Monday, 25 June 2001, by which time the 28-day time limit had expired.

6 Upon those facts, it then appeared that the court was without jurisdiction and s 478(2) expressly removed any power that the court might otherwise have had to extend time. In short, the notice of objection to competency appeared destined to succeed. However, the applicants - then unrepresented - explained their situation as best they were able, and it appeared from what they were saying that they contended that application form, filled out in the Farsi language by them, had been sent to the Court within the 28-day period.

7 In light of that allegation, the matter was stood over to enable investigations to be made by the respondent, and through officers of the Court, to see whether in fact that had occurred. There have been a number of subsequent hearings whilst the facts have been investigated, and in the meantime the Court arranged for pro bono legal assistance for the applicants under Order 80. Mr Aujard has appeared today for the applicants and he has given an outline of facts to the Court, the substance of which the Minister does not dispute. That enables me now to summarise the undisputed facts and then to decide the objection to competency on those facts.

8 On 23 May 2001 the reasons for decision of the RRT dated 21 May 2001 were handed in person to each of the applicants. The applicants at the time indicated to the acting deputy business manager of the centre, Ms Triplett, that they wished to exercise their right to apply to the Federal Court. They were informed at that time of the strict 28-day time limit. Approximately one week later, the centre provided to the applicants with the appropriate court forms to be completed by them to enable their applications to be made. When these forms were given to the applicants, there was no interpreter present, but they were given a general explanation about them. The following day the applicants requested the administrators of the centre to make an interpreter available for the purpose of completing the forms.

9 On 1 June the interpreter, Mr Mehrdad Khooshab, spoke with the applicants and explained to them his predicament, namely that he had no time then to complete the forms and was about to go away. He said that he would be returning in time to enable him to complete the forms for them. The applicants accepted that situation and waited. After a week or so, when the interpreter had not contacted them, they contacted the administrators of the centre and were told that the interpreter had a leg injury. The applicants were told they would have to wait. In the following days the applicants made a number of further inquiries with personnel at the centre and received similar advice.

10 When the applicants calculated that they were within four days of the deadline they again approached the administrators of the centre and insisted on seeing another interpreter. That led to them being introduced to an interpreter competent in the Afghan language who explained that he would have some difficulty interpreting the Farsi instructions which the applicants had written out for the purposes of completing the application, but said he would try to assist them. He took the papers away. Two days later, in the afternoon, the interpreter returned the papers, saying that he could not assist them, and that the problem was the applicants'.

11 The following day the applicants again approached the administrators of the centre and asked that the papers be sent urgently to the Federal Court. It is plain that that did not happen, and indeed there was nothing at that stage to be sent to the Federal Court because the printed application forms had not been filled out. Some days later the applicants were notified that they should go to the Department of Immigration and Multicultural Affairs (DIMA) office at the centre. They did so. They were given an envelope which had in it the blank printed forms and the several pages of Farsi writing which they had intended to be the instructions to the interpreter to complete the forms. These were the documents that they had asked to be transmitted to the Federal Court. They were informed that this had not happened. By that stage, the 28-day time limit had elapsed. On Monday, 25 June 2001, Mr Mehrdad Khooshab returned to the centre. He was consulted by the applicants on 27 June 2001. He then completed the forms as best he was able on their instructions, and they were sent to the court, arriving on 28 June 2001.

12 On that summary of the facts, it is plain that the applicants wished to exercise their rights and took the steps that were available to them in the situation in which they found themselves, but that the steps taken were not sufficient to have the application forms completed and forwarded to the court within time. In the result, no application was sent to the court within 28 days of the applicants being notified of the decision of the RRT.

13 The authorities of this court, which are summarised helpfully by Mansfield J in Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995, make it plain that unless there is an application filed within time this court is without jurisdiction to entertain an application for review, and that upon objection being raised by the respondent, the proceedings must be dismissed as outside the jurisdiction of the court. Those decisions also make it plain that s 478(2) of the Act means there is no power in the court to extend time where an application is filed late, regardless of the circumstances and regardless of the fact that the delay is not in any sense the making of the applicants.

14 One cannot but feel sympathy for the applicants that the applications were not made within time in this instance, but that is not sufficient to invoke power in the court to rectify their predicament. The objections to competency must therefore be upheld, and the applications filed on 28 June 2001 must be dismissed.

15 Whilst I have expressed sympathy about the situation in which the applicants find themselves, that sympathy is related to the procedural aspects of the case. The sympathy is not intended to extend to the merits of the case. The papers before the court do not enable any view about the merits to be formed, and nothing that I have said is intended to indicate that the applications, if they were within the jurisdiction of the court, might have any prospect of success.

16 On the notices of objection to competency there will be orders that the application in each matter be dismissed. There will be no order as to costs.

I certify that the preceding sixteen

numbered paragraphs are a true copy of the

Reasons for Judgment herein of the

Honourable Justice von Doussa.

Associate:

Dated:

Counsel for the Applicants: Mr E M Aujard (pro bono)

Solicitors for the Applicants: Aujard Lawyers

Counsel for the Respondent: Mr S J Maharaj with Ms K Southcott

Solicitors for the Respondent: Sparke Helmore

Date of Hearing: 21 September 2001

Date of Judgment: 21 September 2001