Ameer v Minister for Immigration and Multicultural Affairs

[1999] FCA 1100

FEDERAL COURT OF AUSTRALIA

Ameer v Minister for Immigration & Multicultural Affairs [1999] FCA 1100

MOHAMED RINAS MOHAMED AMEER v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 500 OF 1999

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY

2 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 500 OF 1999

BETWEEN:	MOHAMED RINAS MOHAMED AMEER Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	2 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 11 August 1998 Justice Wilcox dismissed an application to review a decision of the Refugee Review Tribunal which was given on 28 April 1998.  The applicant is a Sri Lankan Tamil who is also a Muslim.  He gave his evidence to the Tribunal in Tamil whilst being accompanied by a solicitor who spoke both English and Tamil.  The applicant seeks leave to appeal out of time from the decision of Justice Wilcox.

2. The reasons he gives for being late with filing his appeal were that he was in detention at Villawood, that he had no money, and that he had no legal assistance.  As a consequence he was unable to commence the appeal.  He apparently did have access to members of the Sri Lankan Tamil community who, it appears, assisted him to lodge the present application for an extension of time to file the appeal.  The appeal was to have been filed by early September 1998.  The application for an extension of time is dated 31 May 1999.  He is therefore nearly nine months out of time.

3. It is difficult to know why he was not deported in that period.  In any case he has still not filed anything even slightly resembling a proper notice of appeal, although there is in the file a draft affidavit of 18 June in an annexure to which he sets out the matters which he would wish to raise in any appeal.  In short, the assertions that he makes are that the interpreter was incompetent and confused such that many of his answers to the Tribunal were distorted and, as a consequence, misunderstood by the Tribunal.  He also alleges that the Tribunal disbelieved him in respect of a number of his major allegations whereas if the evidence had been  properly translated and properly understood, it would not have done so.

4. In the annexure to which I have referred, the applicant says that his fear is that he would be arrested at Colombo airport if he returned to Sri Lanka because he recently learned about returnees being detained at the airport.  He says that his departure from Sri Lanka was illegal and that this fact alone would be enough for the authorities to arrest and detain him indefinitely.  If that is so, then his detention would not be for political activities, as his case to the Tribunal suggested, but because he had broken the law.  He also says that he feared persecution from the LTTE, the Tamil Tigers, because he had belonged to a fundamentalist Islamic militant force set up to protect Muslims from atrocities at the hands of the Tigers.  This fact, if it be true, could not be used as a basis for fear of arrest at the airport because as far as I am aware the LTTE is not in charge of the airport.  I am not quite sure in what part of Sri Lanka he claims to be endangered at the hands of the LTTE but it is unlikely to be Colombo airport.  The applicant also says that the Tribunal wrongly relied upon documentation provided to the Tribunal by the Department of Foreign Affairs and Trade in that in substance the department's information was unfairly selective and incomplete.  I do not know how the problem with the interpreter could have affected this matter or have changed the other factual findings which the Tribunal made adversely to the applicant.

5. This Court does not have the power to substitute its opinion of the evidence for that of the Tribunal and I am not permitted to form any view about the correctness of the Tribunal's factual findings.  My reading of the Tribunal's decision does not suggest that incomplete or inadequate consideration was given to the material placed before it.

6. The applicant says that he was ill – the words "very sick" have been used by him in this connection – when he attended the Tribunal hearing.  He says that on the second day of the Tribunal hearing there was a completely new interpreter who made many mistakes.  If his fears of persecution are serious, as he suggests, it is hard to imagine that he would have allowed illness and his consequent desire to finish the hearing quickly to prevent him from complaining about the poor interpretation, or for that matter about his illness itself.  Moreover, the solicitor who understood both Tamil and English would surely have intervened if the translation had been manifestly wrong and unfair and if his illness had been such that he could not do himself justice before the Tribunal.

7. In order to grant leave to file a notice of appeal out of time, it is necessary for the Court to consider the chances that such an appeal would have of succeeding.  By adjourning an earlier hearing of the present application, I gave the applicant an opportunity to have a translation made of the hearing at which he says the incompetence of the interpreter cost him a favourable result.  Because the case is serious enough to warrant the applicant being given the maximum possible chance of success, I gave him the time he asked for.  However, he has turned up today without an interpretation of the Tamil evidence and without any reason for my accepting that if given more time, a translation would be likely to eventuate.  A translation of the full hearing should not be necessary because presumably only parts of the evidence could have been affected.  If there were any doubt that the applicant was in serious danger of death on return to Sri Lanka as he claims, and if there were a serious proposition that he was so unwell at the Tribunal hearing that he should not be held to his answers, it seems to me likely that someone in the Sri Lankan community would have been willing to assist him.

8. The matter cannot be allowed to drag on.  We are already 13 months on from the Tribunal hearing and the applicant has been in detention for more than two years.  In ordinary circumstances it would not be satisfactory that an applicant who had a serious claim should not be allowed or given facilities which would enable him to present his case at its height.  But he has produced no evidence of being ill, the lawyer present at the hearing did not complain either about his illness or the quality of the translation, and the applicant has not put forward any draft notice of appeal showing how he could succeed in the appeal, despite ample notice and time to do all of these things.  I must therefore conclude that no doubt surrounds the decision of Justice Wilcox such as might suggest that if it were sent to a Full Court, an alternative result might be obtained.  The Full Court would be in exactly the same position as I am, and as was Justice Wilcox, in that it would need to have evidence that the translation was incompetent and inadequate.  The applicant has been given ample opportunity to obtain such a translation but has not been able to produce one.  He has not even been able to state what matters or what items of evidence were wrongly translated and what would have been a correct translation.  In the circumstances, the likelihood of a decision reversing the views of Justice Wilcox is extremely remote.  I therefore dismiss the application for an extension of time in which to file the notice of appeal.

   [AFTER DISCUSSION]

9. The Minister has applied for costs.  The applicant says, and there is every reason to accept that what he says is correct, that he has no money for costs and would be unable to meet the claim.  As I see it, there are two things about this case that deserve to be given attention in this connection.  If the applicant had any reasonable claim to residence in Australia, an unsatisfied costs order in favour of the Minister would have the effect that he could not be considered again until he had paid the costs even if he were then in Sri Lanka.  This is an additional penalty upon an unsuccessful applicant which should be considered carefully before being imposed, especially as this applicant has been in detention now for two years or thereabouts.

10. Moreover, this application for an extension of time to appeal from Justice Wilcox’s decision would never have appeared had the applicant been removed from Australia consequent upon his Honour’s decision.  No explanation has been given as to why he was left in detention in Australia for approximately nine months after the decision of Justice Wilcox, despite the fact that the litigation which he had launched had been completely unsuccessful.  If this fact is looked at from the standpoint of his claims that he is in physical danger if he returns to Sri Lanka, he was probably better off in Villawood, however harsh that place is, than if he had been deported.  On the other hand, there is no evidence that he was left at Villawood with a humanitarian purpose in mind, and what is now almost twelve months extra detention is yet a further harsh penalty which has been visited upon him.  The delay certainly contributed to a build up of expectation or circumstance which led to the present litigation.  It would not have occurred had he been removed from the country after the time for appeal from the decision of Justice Wilcox had expired.  Had that happened, he would have been out of Australia in September last year rather than still being here almost 11 months later.

11. However, the applicant has demonstrated no merit at all in his application for the reconsideration of Justice Wilcox’s decision.  The position is no different today than it was 12 months ago when that decision was given.  In those circumstances the only possible conclusion that I can draw is that there is and was never any merit in the application for asylum in the first place.  It therefore seems appropriate that the Minister should receive his order for costs even though there is apparently no chance that they will be paid.  The application is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             2 August 1999

The applicant appeared in person with the assistance of Mr E Rajadurai (interpreter).
Solicitor for the Respondent:	Mr Murray Allat (Australian Government Solicitor)
Date of Hearing:	2 August 1999
Date of Judgment:	2 August 1999