Ameer, Mohamed Rinas Mohamed v Minster for Immigration & Multicultural Affairs

[1998] FCA 1027

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 443 of 1998

BETWEEN:

MOHAMED RINAS MOHAMED AMEER
Applicant

AND:

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS
Respondent

JUDGE:	WILCOX J
DATE:	11 AUGUST 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   This is an application for review of a decision of the Refugee Review Tribunal given on 28 April 1998.  The applicant, Mohamed Rinas Mohamed Ameer, is a Sri Lankan citizen.  It appears he is a person of Tamil ethnicity but an adherent of the Islamic religion. 

The Tribunal dealt with various claims made by Mr Ameer of likely persecution if he was returned to Sri Lanka.  The Tribunal's reasons set out the claims in considerable detail and refer to "country information" obtained by the Tribunal concerning the situation in Sri Lanka.  Apparently all this material was canvassed at some length at the Tribunal hearing, at which the applicant was represented by a solicitor.  Mr Ameer informed me this morning that the solicitor understood Tamil, the language in which he gave evidence; although I gather he regards her spoken Tamil as imperfect.

Mr Ameer helpfully put into writing the submissions he wished to make to the Court.  I gather he had some assistance in doing this.  I have read the document and discussed the nature of the submissions with him, with the assistance of an interpreter.  The document can be divided into two parts.  The first part, which extends over some six pages sets out comments about various findings contained in the Tribunal's reasons.  In each case, complaint is made about a particular finding of the Tribunal, with reference to material which, it is submitted, ought to have led the Tribunal to prefer a different view. 

I understand Mr Ameer's disappointment with the Tribunal's findings of fact; but those findings are not a matter in relation to which the Court can intervene.  As I explained to Mr Ameer during discussion, the determination of matters of fact in relation to refugee applications is a responsibility of the Tribunal, not the Court.  I have no view about the correctness of the challenged findings, and it is not appropriate for me to form a view.  These are matters entirely for the Tribunal.  No question of law arises in respect of any of them and there is no other matter that falls within the purview of the Court pursuant to s 476 (read with s 420) of the Migration Act 1958.

The second part of the submission is in a different category.  It contains a complaint about the competence of the interpreter who assisted at the second day of the Tribunal hearing.  I accept that provision of a seriously incompetent interpreter would be a matter going to fairness and substantial justice.  No doubt a question of degree is involved, in regard to competence; but a seriously incompetent interpreter would probably result in the hearing being one in which the applicant had been denied a fair chance of putting his case.  Accordingly, I regard this complaint as being a matter within the purview of the Court. 

However, the difficulty, from Mr Ameer's point of view, is that there is no evidence the interpreter was incompetent.  I note the original application filed in the Court made no reference to this issue.  The issue only arose, so far as the Court was concerned, pursuant to an amended Application filed in court today.  When the amended Application was filed, Mr Braham, counsel for the Minister, objected to this matter being ventilated at this late stage; as he pointed out, no evidence relevant to the point had been filed and he had no opportunity of dealing with it. 

I agree there would be a serious problem if there was material before the Court, but without an opportunity for the respondent to deal with that material.  In that event, I would have to consider the most appropriate course to take.  However, there is no material before the Court to support the applicant's claim of incompetence.  Mr Ameer told me, through the interpreter who has assisted him today, that he discussed this question with his solicitor.  There was apparently talk about the possibility of having a new interpreter listen to the tapes of the hearing and record any misinterpretations.  Probably this would have been the way to deal with the problem.  But that possibility was rejected, on the ground no money was available to pay the interpreter.  I can understand that decision if, indeed, it would not have been possible for Mr Ameer to find the money.  However, the result is that the Court has no evidence on the question.

It is relevant to note that no objection was taken during the Tribunal hearing to the quality of the interpretation provided.  In his written submission, Mr Ameer anticipated this point, claiming he was very sick at the hearing and he wanted the Tribunal to take the shortest possible time for his hearing; he thought it would prolong the matter, or possibly cause an adjournment, if he objected to the quality of the interpretation.  Two comments can be made about this.  The first is that there is no evidence that Mr Ameer was unwell.  Second, Mr Ameer's claim is that, if he is returned to Sri Lanka, he is in danger of death.  I would have thought prolongation of the hearing would have been a small price to pay for ensuring his case was properly put before the Tribunal, if he had any serious doubt about that.

The other matter is that, as I have said, he was represented at the hearing by a solicitor who understood Tamil.  If she had had any serious doubt about the competence of the interpreter, to the point where she was concerned about whether Mr Ameer's case was being accurately put to the Tribunal, she would surely have said something.  I cannot believe a solicitor who understood both English and Tamil would have remained silent if there were serious misinterpretations.

I have no option but to hold there is no evidence of an incompetent interpretation.  Accordingly, I must reject this ground.

The written submissions have put very clearly what Mr Ameer wishes to say to the Court.  I am grateful to him and to those who assisted him in putting them in that clear form.  However, I am satisfied there is no proper basis for me to intervene in the case.  I have read the decision of the Tribunal.  It is not for me to form any view about the Tribunal's findings of fact, but I think it not inappropriate to say the decision reveals that the Tribunal very carefully considered all the material put before it and, in particular, the claims made by Mr Ameer.  Having read the decision, I am not left with any feeling there was a failure to accord a proper hearing to Mr Ameer or to consider the case on its merits.  The application for review must fail.  The Application will be dismissed.

I order the Application be dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            11 August 1998

Applicant in person
Counsel for the Respondent:	Peter Braham
Solicitor for the Respondent:	Australian Government Solicitor