Kumula v MIMA

[1998] FCA 613

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - wastage of public money through lack of legal aid - costs ordered denied to successful respondent

Migration Act 1958 (Cth), s 476

LAI TOMMY LEON KUMULA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG52 of 1998

MADGWICK J
18 MAY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG52  of   1998

BETWEEN:	LAI TOMMY LEON KUMULA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		MADGWICK
DATE OF ORDER:		18 MAY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG52 of 1998

BETWEEN:	LAI TOMMY LEON KUMULA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK
DATE:	18 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:   This is yet another application for judicial review of a decision of the Refugee Review Tribunal with no prospect of success here. 

The Minister very properly appears by counsel and counsel is very properly instructed by a solicitor.  The solicitor is very properly instructed and supported by an officer of the Department.  The applicant's English is sufficiently limited that he does not feel confident to present his case without an interpreter.  He has available to him a Chinese interpreter, who appears very capable.  A very considerable amount of money has been spent on this hearing.  I speak of public money.  I do not know what other money Mr Kumula, the applicant, may have spent.  Those who think there are savings to the public purse in limiting legal aid in cases like this, ought to have the experience of sitting here and understanding how much public money has very likely been wasted.  Had Mr Kumula been properly legally advised, I doubt that he would have persisted with this application. 

As it is, like most other applicants for such review who appear in person and whose first language is not English, it is beyond my ability to explain to him the limited role of the Court.

Mr Kumula is an Indonesian citizen of Chinese origin.  He has made a broad appeal for me to respect his human rights, to give him another chance to stay in Australia.  He desires time, he says, to fully appreciate and assess the position in Indonesia.  As I speak, the Indonesian and Australian nations await with trepidation Wednesday, 20 May, two days away.  A leader of the Muslim faith promises that millions will take to the streets. The students promise major demonstrations.  President Soeharto has declined to resign and has reshuffled his cabinet.  That has been said to be too little, too late.  Australians in Indonesia have been advised to flee the country and many have done so.  There has been a resurgence of anti-Chinese rioting along with other rioting. 

All of that has little to do with the substance of this hearing, but confirms how unfortunate it is that a person who, whatever his history, might very reasonably fear for life and limb if he is made to go back to Indonesia and may very well fear for members of his family and friends, should not have some legal advice.  If he cannot or will not afford it, it would save the Australian taxpayer a considerable amount of money if it were provided for him.

I have read the reasons of the member of the Refugee Review Tribunal for not disturbing the finding by the Minister's delegate that Mr Kumula is not entitled to protection status as a refugee.  I am obliged to read those reasons in a charitable way without any pernickety attempt to uncover legal error or merely to seize on infelicity of expression.  Mr Kumula points in terms to no error of law. 

He says, however, that something was lost in translation by the Indonesian language interpreter that he used before the Tribunal.  It is his choice to have a Chinese interpreter here today.  He says the point that was lost on the Tribunal member was that he did not in any sense voluntarily bribe those in authority to obtain a logging concession, rather, the bribe was extorted from him.  It was made clear to him that there could be no progress with the concession unless he paid money and so, unwillingly, he paid the money over.  He feels that the Tribunal member did not understand this. 

If matters miscarry so that the Tribunal member did not fully understand what Mr Kumula was saying then I assume that that could amount to a procedural failure such that the Court could intervene, but I am not satisfied that the Tribunal member failed to understand that that truly was what Mr Kumula was saying.  Nor do I think it could rationally have made a difference to her decision if she had so misunderstood it.

The Tribunal member was, very properly if I may say so, on her guard against inappropriately mounting a moral high horse.  She understood that, in situations where people have suffered, for various reasons, their ability or willingness to be as scrupulous as George Washington with the truth is sometimes impaired.  She simply felt, as a matter of fact, having stated that she was applying certain, correct legal tests, that the real difficulties of the applicant which might possibly be serious enough to amount to persecution were not caused by any Convention reason but by the applicant's having involved himself, however unwillingly or willingly, in corruption and by a faction having access to the levers of legal enforcement having taken this very much amiss.  She took the view that the applicant's troubles arose because certain people in power wished to assert and were asserting that what he had done was against the law and he should be punished.  There was ample material to found such a view.

Because of the situation in Indonesia, I have in fact read the Tribunal member's judgment with an eye very keenly attuned to the discernment of legal error that would enable the Court to intervene, but I do not see any.  Ms Hartstein, counsel for the Minister, tells me she has done the same and I accept that, of course.  I have no option but to dismiss the application for review and to affirm the decision of the Refugee Review Tribunal.

I am not going to award costs in this matter.  The parties can pay their own costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:             18 May 1998

Counsel for the Respondent:	V Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 May 1998
Date of Judgment:	18 May 1998