W281 v Minister for Immigration & Multicultural Affairs [2002] FCA 419 (9 April 2002)

Last Updated: 10 April 2002

FEDERAL COURT OF AUSTRALIA

W281 v Minister for Immigration & Multicultural Affairs [2002] FCA 419

MIGRATION - judicial review - application for a protection visa - Refugee Review Tribunal - application for order of review - application lodged out of time - objection to competency - application lodged out of time because of refusal of detention centre administration to forward it without payment of a faxing fee - want of jurisdiction - objection to competency upheld - merits of application - application would not have succeeded on the merits

Migration Act 1958 (Cth) ss, 476, 478, 485, 486

Raymond v Honey [1982] 1 All ER 716

Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468

Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672

Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778; (2000) 99 FCR 269

Hafezyan v Minister for Immigration & Multicultural Affairs [2001] FCA 1131

Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535

Abidin v Minister for Immigration & Multicultural Affairs [2002] FCA 236

Abidin v Minister for Immigration & Multicultural Affairs [2001] FCA 842

W281 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 281 OF 2001

FRENCH J

9 APRIL 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 281 OF 2001

BETWEEN:	W281 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	9 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Each party bear their own 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 281 OF 2001

BETWEEN:	W281 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	9 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 The applicant, who is a citizen of Pakistan, was born in Punjab on 1 February 1975. He received both primary and secondary school education, completing a matriculation examination in 1990. His parents and siblings, three brothers and a sister, still live in Punjab. He arrived in Australian waters in November 2000 without lawful authority. On 3 January 2001, he submitted an application for a protection visa which was refused on 11 January 2001 by a delegate of the Minister for Immigration and Multicultural Affairs. On 17 January 2001, he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 26 March 2001, the Tribunal affirmed the decision not to grant a protection visa. On 6 July 2001, an application was filed in the Western Australian District Registry of this Court seeking an order for review of the decision of the Tribunal. Objection has been taken to the competency of the application on the basis that it was filed out of time.

Evidence and Claims

2 Central to the applicant's claim is his contention that as a member of the Ahmadi religion he was subject to persecution in Pakistan. In his interview upon arrival in Australia, conducted on 7 December 2000, he was recorded as saying that he and others like him were treated as animals by local people. He said he was beaten several times before his departure from Pakistan. His mother and sister were abused. They were considered as traitors because they are Ahmadis. On many occasions while walking down the street things were thrown at him. People said bad things about the head of the Ahmadi religion. The applicant said he became aware of a plot to kill him. The people concerned were people from Muslim areas of his town. His family borrowed money from relatives to help him so that he could save his own life. He only escaped from Pakistan with difficulty.

3 In a typed statement in support of his application for a protection visa, prepared with the assistance of a migration agent, the applicant said that when at school he was discriminated against because of his religion. After completing his education he discovered that because of his religion he would not be employed and if he were employed and his employer discovered his religion he would be sacked. He passed his time by working in various clothing stores. He would be employed and as soon as it was discovered he was Ahmadi he would lose his job. He could only get employment for short periods of time. In 1998 however he secured a job which lasted for a couple of years, but as soon as his employers found out he was Ahmadi he was sacked.

4 The applicant said that the priests of other Muslim groups, Sunni, Shi'as and Khatme Nabout, had decreed that if an Ahmadi were killed the killer would go to heaven. He said this is known throughout Pakistan. He said Ahmadis are frightened to discuss their religion because even though they are Muslim they are declared to be different to other Muslims. Other Muslims, he said, respect Jews and other religions, but not the Muslim Ahmadi. He said he had experienced beatings and harassment for many years. About eighteen months to two years ago he tried to go and pray in one of the Muslim mosques. When he entered other Muslims took him out and he was severely beaten and bashed. They said he had degraded their mosque.

5 He went to police on a couple of occasions to complain about being harassed and beaten and was told that it was good that this was happening to him and that he should leave the country. Realising that complaining made no difference, he stopped going to the police. He said it is common practice in Pakistan for priests to declare over the speakers each week that the Muslim Ahmadis are Kafirs or traitors and have no right to live in the country and should be "finished". He said there is a law in Pakistan that if an Ahmadi greets a common person he or she can be put in prison for three years without bail. He referred to discriminatory laws passed in Pakistan in 1974 and 1984. One day when he was walking to the local market a group called "Islami Jamaat" began shouting and swearing slogans about the founder of the Ahmadi religion, Mirza Ghulam Ahmed. When the applicant approached them to question why they were abusing the founder of his religion they beat him to the point of unconsciousness. He managed to get home but when his assailants found out he was still alive they started loitering around the house and shouting that they would kill him. He didn't leave the house for two or three days as he was scared because of the people gathered outside.

6 The applicant's father financed his escape from Pakistan, getting money together and borrowing from other relatives. The actual departure was organised by a smuggler. The applicant said he didn't see any passports or travel documents, the smuggler had organised these and he travelled with him all the way of Indonesia. They departed through Lahore airport. He said he was in Indonesia for about five months and after that the smuggler put him on a boat and he came to Australia. He said he could not return to Pakistan because if he returned he would be killed by other Muslim sects who are opposed to his religion.

7 A submission was made on behalf of the applicant to the Tribunal in a letter dated 23 January 2001 from his migration agents. It focussed on statements and findings made by the delegate. This approach seems to be misconceived as the Tribunal is not concerned to deal with appeals from the delegates but rather to deal with the matter de novo. In addition to argumentative responses to the delegate's findings, there was extensive reference to country information about the position of Ahmadis in Pakistan.

8 Prior to the hearing the Tribunal made inquiries of the Ahmadiyya Association in Australia to confirm with Ahmadi authorities in Pakistan whether or not the applicant was a practising Ahmadi and a known member of the Ahmadi community in Pakistan. On 8 March 2001, the Ameer and Missionary Incharge of the Ahmadiyya Muslim Association in Australia replied to the Tribunal saying that according to Ahmadi headquarters in Pakistan the applicant was not an Ahmadi.

9 In its reasons for decision the Tribunal referred to the applicant's accounts of what had happened to him in Pakistan. On the day prior to the hearing the Tribunal received a facsimile from the applicant's adviser attaching "documents from Curtin" regarding their client. There were five of these documents. Two were not in English. They were dated 19 March. One of the documents was apparently addressed to the applicant's adviser and although it purported to be signed by the local Ahmadi Amir it was written as though by the applicant's father. It bore a sub-heading "From the home mates". It began:

"The Jamaat-e-Islami and Khattam-e-Mabuat have attacked on our house and thereby they also started firing, for which our house has sustained much damage."

A second letter also addressed to the applicant's adviser and purportedly signed by the local Ahmadi Amir asserted personal knowledge of the applicant and of his father. A third letter, again purportedly signed by the same person, repeated personal knowledge of the applicant and stated that he was the brother of eight sisters. In fact, as already mentioned, the applicant has three older brothers and a sister. The Tribunal's reasons for decision referred to questions which it put to the applicant about specific incidents which he claimed to have experienced over the last two years in Pakistan and which formed the basis for his claim. The incidents mentioned were:

1. The occasion on which he entered a Muslim mosque and was assaulted as a result and accused of defiling the mosque.

2. The occasion in December 1999 when he attended a restaurant in his suburb. Muslims who knew him saw him and asked why he had defiled a Muslim restaurant and began assaulting him.

3. Many occasions upon which the applicant was assaulted because Muslims said he had a Muslim name which he should not use because he was not a Muslim.

4. In May 2000, the leader of the Muslim group Khatme Nabout had been killed. Armed Muslims attacked Ahmadis in the market place and said they wanted to kill all of them. They were told to leave or they would be killed.

10 The applicant also said he had left the Ahmadi religion and he and his father had started going to the Muslim mosque so other people would believe he had abandoned the Ahmadi faith. He was not beaten and did not have problems entering the mosque to worship. He also said that after June 2000 he had secretly attended the Ahmadi mosque. This was at odds with his statement to the departmental delegate at interview that he did not attend the Ahmadi mosque but prayed at home.

11 The applicant also told the Tribunal that he did not inform them earlier of his abandonment of the Ahmadi religion because if he had said he was no longer an Ahmadi that might have hurt his case for a protection visa. In relation to discrimination at school as an Ahmadi, he said he was not allowed to participate with other children in Muslim religious instruction or in Muslim prayers or songs because he was said to be a non-Muslim. He was given jobs to do instead. Nevertheless he did complete secondary school up to matriculation level in 1990.

12 The Tribunal also questioned the applicant about the letters which he had put to it. It put to him that all three English language letters had in fact been prepared and sent by the same person. It observed that the letter written as if from his father in fact bore the signature and name and signature block details of the Ahmadi Amir, exactly the same as the other letters sent from the Amir. The applicant could not account for this.

13 The Tribunal had before it extensive country information about discrimination against Ahmadis in Pakistan.

Findings and Reasons

14 In its findings and reasons, the Tribunal referred to serious inconsistencies and difficulties in the applicant's evidence. What he said in his original application and statement and at his interview with the delegate differed significantly from what he put to the Tribunal at the hearing and in letters submitted to the Tribunal the previous day. He was unable to explain satisfactorily to the Tribunal why he had not previously mentioned that he had left the Ahmadi religion, albeit temporarily and that he had attended the Muslim mosque and also went secretly to the Ahmadi mosque. At the hearing he said his house had been attacked and shots fired and his father beaten up in May 2000 but had not mentioned this previously. He also gave varying evidence at the hearing about his involvement as an Ahmadi. He said that before June 2000 he had attended the Ahmadi mosque regularly for Friday prayers two or three times a month. However at the interview with the delegate he said he had not gone to the mosque often because it was too far from his home and he only prayed at home. His evidence about these matters were said to be "unconvincing and unsatisfactory". As to the three English language letters, they had the same letterhead, format, signature and signature block details of the Ahmadi Amir in Gujranwalla in Punjab, even though one was supposed to be from his father and one was said by the applicant himself to be false. The Tribunal found that the letters presented a strong appearance of having been prepared for the purpose of supporting his claims but of having been botched in the doing. It was not satisfied that any of the letters could be relied upon or given weight as independent supporting evidence in relation to the applicant's claims. Indeed, independent evidence derived from country information appeared "flatly inconsistent" with the letters.

15 The Tribunal also held that it was inconceivable that the Ahmadi Amir in Gujranwalla would be familiar with the applicant and his circumstances, including his claimed continuing secret adherence to Ahmadi without this familiarity being reflected in the response to the inquiry made by the Tribunal with the Ahmadi authorities at their headquarters in Pakistan. That inquiry was made with the Australian Association. The Tribunal was satisfied, in the event, that the letters submitted to the Tribunal by the applicant had been concocted in order to support his claims and should not be relied upon or given weight. It was also satisfied that he is not an Ahmadi, had not been persecuted by reason of his Ahmadi faith and would not face a real chance of persecution for that reason on return to Pakistan.

The Application for Review

16 The application for review disclosed no grounds. It simply asserted that the applicant is aggrieved by the Tribunal's decision because:

"THOSE WHO WANTS TO KILL ME THEY WILL NOT SEE WHEATHERE I AM REGISTERD AHMEDI OR NOT. THEY WILL SIMPLY KILL ME FOR BEING A AHMEDI." (sic)

An amended application was filed on 5 November and set out the following ground upon which review was sought:

"4. The Grounds of the Application are:

(i) The Refugee Review Tribunal in making its decision committed an error of law and the Applicant seeks review pursuant to s 476(1)(b), (c) & (e).

Particulars

(a) The Tribunal incorrectly considered that the Applicant was required to be a registered member of the Ahmadi religion in order for there to be a real chance of religious persecution of the Applicant.

(b) The Tribunal failed to consider if the Applicant would suffer religious persecution by reason of his religious beliefs."

Objection to Competency

17 The Minister's objection to competency was filed on 15 August 2001, and asserted that the Court has no jurisdiction under the Migration Act 1958 (Cth) to review the decision made by the Tribunal as the application for review was not lodged with the Registry of the Federal Court within twenty eight days of the applicant being notified of the Tribunal's decision. The time limit for such lodgment is imposed by s 478(1)(b) of the Act.

Statutory Framework

18 Review of decisions of the Refugee Review Tribunal by the Federal Court are provided for in Part 8 of the Migration Act 1958. The grounds for review of such decisions, which are part of the class of "judicially-reviewable decisions" are set out in s 476 which, at the relevant time, provided:

"476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

.

.

.

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

.

.

.

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."

19 The time limited for an application to the Federal Court is set out in s 478, which provides:

"478(1) An application under section 476 or 477 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 a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(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)."

20 Limitations on the Court's jurisdiction are defined in s 485 thus:

"485(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2) or (3), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903."

Subsections (2) and (3) are not relevant for present purposes. The jurisdiction of the Court is conferred by s 486:

"The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution."

The Objection as to Competency - The Factual Background

21 In an affidavit sworn on 31 October 2001, the applicant said he received the reasons for the Tribunal's decision on 27 March 2001. He was aware that any review application to this Court had to be lodged within twenty-eight days of notification of the decision to him. His affidavit states that on 20 March 2001, he completed and signed an application for review by the Federal Court and left that document at the Administration Office at the Curtin Detention Centre. It is common ground that he intended to say 20 April. The application itself was undated but a contemporaneous Application for Fee Exemption was dated 20 April 2001.

22 The applicant said that on 24 April he was told "by the Centre" that his application had not been forwarded to the Federal Court as he did not have enough money in his account at the time. He said he was worried about this because he knew that the last date he had to lodge the review application was 24 April 2001. On the same day he borrowed money from a friend and approached an officer at the Camp Office near his camp area in the centre. He told the officer that he had to lodge his review application that day. He asked how he could make sure this was done. The officer informed him that all he had to do was to follow the same procedure and lodge the fax and the money with the Administration Office at the Detention Centre. He lodged the review application for faxing by the Detention Centre to the Federal Court on 24 April and believed that it would be sent to the Federal Court that day. The fax was returned to him and he asked the officer who returned it to him if it had been faxed. He was told it had. Sometime later, he said, all other detainees at the camp who had lodged review applications around 24 April had received notification from the Federal Court of their hearing dates. He did not receive any such notification. He was concerned about this and made inquiries with the Administration Office and was informed that his application had not been submitted. He immediately arranged for another review application to be faxed. The applicant was not cross-examined on his affidavit. I accept its contents as an accurate account of what occurred from the applicant's point of view.

23 Evidence was also given on affidavit by three persons employed at the Centre at the relevant time. They were, Sonya Boylan, employed at the Centre by the Department of Immigration and Multicultural Affairs as Assistant Business Manager, Terrina Wallis, (formerly Terrina Willie) employed as Deputy Business Manager by the Department and Leanne Backstrom, employed by Australasian Correctional Management (ACM) as a Trust Administrative Officer at the Centre. It is not in dispute that ACM manages the Centre under a contract with DIMA.

24 Mrs Wallis described the practice followed in April 2001 for dealing with detainees' applications for review. There were no written policies, instructions or statements of procedure relating to those matters. There was what Mrs Wallis called "... a usual practice or unwritten procedure in relation to requests by detainees for documents to be faxed". This practice, she said, was in place as at 20 April 2001 and was followed by DIMA officers at the time.

25 The procedure was thus. Firstly, the detainee would place the document he or she wished to be faxed in the DIMA box located at the Administration Office along with a request for that fax to be sent. DIMA officers would empty the box twice a day, at set times in the morning and evening. Upon emptying the box and receiving the request, a DIMA officer would create a fax cover sheet and then give the request to the ACM Trust Officer responsible for handling detainee funds. The ACM Trust Officer would check the records to see if the detainee had any funds in his or her account. If a detainee had sufficient funds the fax would be sent and the funds withdrawn. After the sending of the fax, the faxed pages would be returned to DIMA together with the fax transmission report upon which the amount spent by the detainee in the sending of the fax was handwritten. If the detainee did not have sufficient funds, the fax request would be returned to DIMA. DIMA would then return the fax to the detainee with a letter translated into the detainee's language advising that there insufficient funds to send a fax. It was then the detainee's responsibility to either transfer funds from a friend or to post the information, the cost of postage being covered by DIMA.

26 In cross-examination, Mrs Wallis said that the decision to charge a fee was made because the Department was "not to assist detainees with their Federal Court proceedings, and it was a fee that was established so that the detainees could actually send a fax". There was a departmental policy under which detainees were not to be assisted with Federal Court proceedings and the interpretation of that policy regarded the free transmission of a fax as assistance. Since that time the practice has changed because of instances like the present one where detainees have lodged applications to be sent to the Federal Court but because of the unavailability of funds to cover the cost of a fax there has been a delay resulting in the application being out of time. Notwithstanding her evidence about the departmental "non-assistance" policy, Mrs Wallis was unable to say whether, when the fee requirement was in place, it was imposed by ACM in order to recover their costs of faxing or reflected a policy decision by the Department. The Department, however, was certainly aware of it. As to the clearing practice, it was her evidence that DIMA officers would empty the box containing requests to send faxes twice a day, in the morning and evening. She believed that that was the procedure as at 20 April, but was not one hundred per cent certain.

27 Ms Boylan's evidence was that the DIMA box located at the Administration Office of the Curtin Detention Centre was cleared on Monday, 23 April 2001. At that time a request by the applicant to send a fax to the Federal Court was in the box. She said she completed a standard fax cover sheet which she submitted to the ACM Trust Officer. ACM however advised her that the applicant had no funds in his account and therefore they could not send the fax. She returned the applicant's fax to him with a letter in English and translations in Farsi and Arabic explaining that he had no funds in his account and that he could send the document by post or borrow money from a friend to send the fax. On 26 April, after having again received from the applicant a request to send a fax to the Federal Court, she resubmitted his request to the ACM Trust Officer. She said the situation was brought to her attention again on 5 July 2001, when the applicant approached her saying he did not have a directions hearing allocated at the Federal Court like his friends. She asked to see his documents and then faxed the application to the Federal Court on that day.

28 There was a minor conflict between the evidence of Ms Boylan and that of Mrs Wallis in relation to the frequency with which the DIMA box was cleared. Ms Boylan said it was cleared once daily between 8am and 9am. Mrs Wallis said it was cleared twice daily although she could not be one hundred per cent sure.

29 Ms Boylan said in cross-examination that she did not see the fax request from the applicant until Monday, 23 April and was unable to say when it had been deposited in the box. It seems likely however that the applicant deposited the fax on Friday 20 April. It was Ms Boylan's evidence that the box was not cleared on Saturdays or Sundays. The transmission of the fax was the responsibility of the ACM Trust Officer. Ms Boylan was unaware of any responsibility under DIMA policies or procedures for ensuring that ACM actually faxed such documents. Where there were insufficient funds to pay for the fax, the document would be returned to her with a post-it note to that effect. Ms Boylan confirmed that the practice has since changed so that applications for review by this Court are now faxed to the Court immediately upon their receipt in the Administration Office at the Centre. There is now no checking for availability of funds in advance. The situation which arose in this case could not arise now.

30 Ms Boylan said she would not have received the resubmitted fax lodged by the applicant on 24 April until 26 April. This was because 25 April, being Anzac Day, was a public holiday. On 26 April she gave the resubmitted fax to ACM by leaving it in the relevant pigeonhole. It was not until 5 July when the applicant raised a query about the absence of any advice about a directions hearing, that she became aware that the application had not been faxed. She then faxed it to the Court straight away.

31 Leanne Backstrom was the Trust Administrative Officer employed by ACM at that time. She described the procedure for sending faxes from detainees as it operated on 20 April 2001. She confirmed that her Department, the Trust Department, had received a fax request from the DIMA for the applicant on or about 23 April. He only had $1.78 in his account and as the cost of the fax was $10 it was returned to DIMA with an advice that there were insufficient funds in the account. On 27 April a request was received by the Trust Department to transfer $10 into the applicant's account from another detainee's account. This transfer was processed and recorded. There is, however, no record to indicate that a fax from the applicant was received a second time by the Trust Department.

32 In cross-examination, Ms Backstrom said that generally ACM officers were not aware of the twenty eight day period for filing applications in the Federal Court. She said that the imposition of a fee for faxing documents to the Court was a DIMA decision.

33 Although there is some variation in detail, the factual picture that emerges from the evidence is clear enough, at least in its salient features. I find that the applicant did complete an application to this Court for an order of review of the decision of the Tribunal on 20 April. He placed that application in the appropriate receptacle at the Curtin Detention Centre on that day. The application was collected by an officer of DIMA on Monday, 23 April and then passed to ACM for transmission to the Court. The ACM Trust Officer declined to transmit the application to the Court because there were insufficient funds in the applicant's account at the Centre to meet the cost of the fax. On 24 April, the application was returned to the DIMA officer and the applicant was told that it had not been sent to the Court for want of the necessary funds. This was the last day of the twenty eight day period which had elapsed since the applicant was notified of the Tribunal decision. The applicant arranged to obtain funds from another detainee to enable the fax to be transmitted. Although relodged by the applicant on that day, the fax request was not processed until 26 April and, in the event, the fax was not sent until 5 July when Ms Boylan was approached by the applicant who complained he had received no notification of a directions hearing date.

The Question of Jurisdiction

34 The Minister submits that because the application was lodged outside the twenty eight day period provided for in s 478(1)(b), the Court lacks jurisdiction to entertain it. The applicant submitted that his application was "lodged" within the meaning of the section, within the twenty eight day time limit. Being in detention under the authority of the Migration Act he had done all he could do to lodge the application for review and, as such could be deemed to have lodged it.

35 Counsel for the applicant, in his oral submissions, argued that the words "must ... be lodged with a Registry of the Federal Court within 28 days...", appearing in s 478(1)(b), should be interpreted to encompass delivery to the Minister's agent in a detention centre. In aid of this construction references were made to observations by Lord Bridge in Raymond v Honey [1982] 1 All ER 716 at 762 that:

"A citizen's right to unimpeded access to the courts can only be taken away by express enactment."

Reference was also made to Article 17 of the Covenant on Civil and Political Rights which provides, inter alia, that:

"No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence."

36 Unfortunately, contrary authority binds this Court to reject the applicant's submissions on the question of jurisdiction. In Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471, the Full Court held that an application to review will be "lodged" when it comes into the possession of a Registry or the staff of a Registry. An application sent by facsimile will be in the possession of the Registry when the transmission is complete. The requirement for lodgment at the Registry is not affected by the fact that a request for a fax delivered to DIMA for lodgment in the Court is not transmitted to the Court. In such a case it is not lodged and whether the explanation for the non-lodgment places the responsibility entirely within the hands of DIMA or ACM or some party other than the applicant, makes no difference to the application of the section in that case.

37 The time limit for which the Act provides is jurisdictional - Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672; Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778; (2000) 99 FCR 269 at 280 and Hafezyan v Minister for Immigration & Multicultural Affairs [2001] FCA 1131.

38 Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 was a case in which a facsimile of an application for review was sent by ACM staff at the relevant detention centre to the wrong fax number and arrived at the Federal Court out of time. Notwithstanding this, it was held that the Court had no jurisdiction to extend.

39 In Abidin v Minister for Immigration & Multicultural Affairs [2002] FCA 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.

Merits of the Application

41 The Tribunal's findings were strongly adverse to the applicant's credibility. There was plainly support for the view taken by the Tribunal in this respect. The explanation for fleeing from Pakistan given by the applicant at his initial interview was markedly inconsistent with his later claims. The letters he produced were evidently falsified for the purpose of supporting his claim. These were matters supporting adverse findings on his credit which could not be challenged even if this Court had the jurisdiction to entertain them.

42 The attack upon the Tribunal's decision was based upon its disbelief of the applicant's claim to be an Ahmadi. The Tribunal, it was said, had impliedly found that community hostility towards Ahmadis in Pakistan was directed only to those persons who identify as members of the Ahmadi religion and whose names are recorded as members by the organisational manifestations of that religion. It failed to comprehend that community hostility is not, in a practical sense, informed by the technical requirements or facts of membership of a particular group. The applicant submitted that a community may identify a person as belonging to a particular religion notwithstanding that the person's identity with that religion is not from a "technical" perspective in accordance with a set of established internalised rules. It was submitted that in determining whether or not the applicant faced a risk of persecution in Pakistan on account of his religion, the Tribunal went too far as it sought to impose a technical meaning on the term "religion" as contained in the Refugee Convention.

43 In my opinion, however, this line of argument was plainly an attempt to elevate what was in fact a finding on the facts of the matter into a question of principle. The question is academic having regard to the finding on jurisdiction. However the application for review appears, in the end, to have been without merit.

Conclusion

44 For the preceding reasons the application will be dismissed on the basis that the Court lacks jurisdiction to entertain it. Given the circumstances in which that lack of jurisdiction has been established, it is my opinion that each party should bear its own costs of the proceedings.

I certify that the preceding forty four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated: 9 April 2002

Counsel for the Applicant:	Mr MR Rynne (appearing pro bono)
Counsel for the Respondent:	Dr JT Schoombee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 November and 4 December 2001
Date of Judgment:	9 April 2002