Berhane, Yosife v Minister for Immigration and Multicultural Affairs

[1998] FCA 342

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1011  of  1997

BETWEEN:	YOSIFE BERHANE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE:	23 MARCH 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  On 5 March I heard submissions on behalf of the Minister for Immigration and Multicultural Affairs (“the Minister”) and on behalf of Mr Yosife Berhane (“the Applicant”).  The Applicant was assisted, on that occasion, by an Amharic interpreter.  During the course of the proceedings the Applicant indicated that he wished the proceedings to be adjourned to enable him to raise funds so that he could obtain legal representation.  I declined that adjournment and gave reasons why I would, on the material then before me, dismiss the application.

However, because of the circumstance that the Applicant had only been informed the day before that pro bono legal assistance would not be available, I made no orders on that day and stood the proceedings over part heard to today.  I directed that the Applicant file and serve no later than 18 March 1998 any further submissions which he wished to make in answer to the written submissions of the Minister of 4 March 1998 or by way of response to the provisional views which I then expressed.

In response to that direction I have received further written material from the Applicant.  The material, apart from a cover sheet, comprises a copy of a letter of 18 February 1998 from the pro bono section of the Law Society indicating that some additional papers had been sent to the Bar Association for consideration.  There then followed five pages of handwritten script, most of which was in a script which I am unable to read, but which I am told may be Tigrinya.

Part of the handwritten material is in English and says the following:

Anyone who belongs to other political organisations and wishes to continue to do so woulde [sic] be taking a serious risk to their freedom and to their life in returning to Eritrea.

...A number of political opponents of the EPLF remain detained without charge or trial.  Some of the detained, including some who had been abducted frome [sic] Ethiopia or Sudan.

At this stage on the basis of all the information available to Amnesty International it is not safe for any opponent of the EPLF to return to Eritrea.

Kidnappings have been more numerous in Addis Ababa over the last year, and in Port Sudan and Kassala for much longer.

The balance of material attached to the submissions comprised typed material with some handwritten notations appearing to emanate from Amnesty International together with extracts from newspaper reports relating to Ethiopia.  The material which I have just cited as having been written in English is contained in those extracts.

All of the material from Amnesty International and the newspaper reports was material which was before the Tribunal at the time when the decision was made of which review is being sought. In the circumstances there does not appear to be anything in the additional written submissions which is capable of establishing any of the grounds in section 476 of the Migration Act 1958 (Cth) (“the Act”). The material which I have appears to be no more than an invitation to reconsider the factual material.

In the course of the hearing today the Applicant said that he wanted a Tigrinya interpreter.  A request to that effect had been made to my chambers in the course of last week.  However, no arrangements were made for a Tigrinya interpreter to be present.  Rather an Amharic interpreter has been present in Court during the course of the hearing.  The Applicant had previously said and repeated again today that he understands Amharic better than Tigrinya.  Nevertheless the Applicant was very agitated today because of the absence of a Tigrinya interpreter.

When asked for the reason for requiring a Tigrinya interpreter the Applicant referred a paragraph of the Tribunal’s reasons as follows:

Mr Berhane is a 28 year old single man from Addis Ababa.  He is a Christian from the Tigrinya tribe and speaks Amharic.  He worked as a mechanic at a garage owned by his family and also worked sometimes as a surveyor.  He has nine siblings, all of whom remain in Ethiopia.

The Applicant said that the implication from that paragraph was that he does not speak Tigrinya and speaks only Amharic and he said that that is wrong.  He repeated several times that the reason why he wanted a Tigrinya interpreter was to enable him to prove that he could speak Tigrinya.

However, when asked why he needed to prove that fact he was unable to give any satisfactory answer or at least failed to give any satisfactory answer.  He did say that it was very important to him that he established that he could speak Tigrinya and said that he believed that the Tribunal had made a mistake in concluding that he did not speak Tigrinya.  I indicated to him that I was prepared to proceed to hear the matter on the assumption that he could speak Tigrinya, but that I needed him to explain how that fact was material to the decision made by the Tribunal.

The only possible significance of the fact that the Applicant speaks Tigrinya would be that it might be evidence of his ethnicity.  However, as the paragraph quoted above indicates, the Tribunal accepted that the Applicant was from the Tigrinya tribe.  There is no reference anywhere else in the reasons to that fact or the fact that he does or does not speak Tigrinya.  I do not understand the Tribunal's reasons as being based in any way upon an assumption or a finding that the Applicant does not speak Tigrinya.  Accordingly, that fact appears to be irrelevant to the conclusions which were reached by the Tribunal.

As I have said earlier the Tribunal's conclusion was that the Applicant was not a credible witness. The Tribunal found that there were serious discrepancies between the claims made by him when he first arrived in Australia and the claims which he subsequently made in his application for a protection visa. The findings which were made by the Tribunal and the reluctance on the Tribunal's part to accept the Applicant’s credibility were not in any way based upon a finding or assumption that he does not speak Tigrinya. In the circumstances, nothing further has been said by the Applicant and there is nothing further in the written material which I have received and which I am able to comprehend which indicates that any ground in section 476 of the Act has been established by the Applicant.

I should, perhaps, say that one can understand the concern which the Applicant feels that his application is unsuccessful. However, I can only decide the matter in accordance with the provisions of the Act. In the circumstances it appears to me that the provisional view which I expressed on 5 March should be confirmed. Accordingly, I order that the application be dismissed. I order the Applicant to pay the Minister's costs of the proceedings.

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

Associate:

Dated:             23 March 1998

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 March 1998
Date of Judgment:	23 March 1998