Wapa v MIMA

[2003] HCATrans 436

[2003] HCATrans 436

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P20 of 2001

B e t w e e n -

WAPA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 9.29 AM

Copyright in the High Court of Australia

WAPA appeared in person.

KIRBY J:   I think we have a Court interpreter in another place, is that correct?  Would you administer the affirmation to the Interpreter please.

MANTHRI KARIYAWASAM, affirmed as interpreter:

MR P.R. MACLIVER:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   I notice that the name of the applicant is expressed in the record of the Court.  Ought that to be corrected so that he is given an identifier?

MR MACLIVER:   I think it should, your Honour.

KIRBY J:   Yes.  We are going to correct the record so that your name does not appear on the record, so that you merely appear by the initials “WAPA”.  That is in order that the Internet connection does not refer to your name.  Would you explain that to the applicant please?  We are going to refer to him by a pseudonym to protect his identity.

WAPA (through interpreter):   My name is…..

KIRBY J:   We know that.  But I am going to give a direction that your name will not appear in the record and will not appear on the transcript or on the Internet, but that you will be known as WAPA in order that your name is anonymised.  That is a process that is required by law and it is for your protection.  Explain that please to the applicant.

WAPA (through interpreter):   I am very thankful to you about it.

KIRBY J:   Now, does the applicant understand that he has 20 minutes.  We have his written documents, which we have read, and he has 20 minutes in which to speak to the Court.  Does he understand that?  That includes your interpretation.

WAPA (through interpreter):   Your Honour, I do not have a lawyer represent me.  I do not speak or understand English as such, and therefore I am requesting your Honour to give me a postponement of this case today.

KIRBY J:   Well, I do not think that will be possible because your case has been in the courts for a very long time.  The decision of the Full Court in this matter was made as long ago as 18 May 2001, and these cases have to be dealt with promptly.  The Court has your written documents and we have read them, and they are substantial, and this is the opportunity for the case to be concluded.  So you should proceed with your argument.

WAPA (through interpreter):   …..I have political and other enemies in Sri Lanka.

KIRBY J:   Yes, we have read the argument that you have placed before the Court, and we understand that.  Mr Macliver, there is an affidavit sworn 24 October 2003 by the applicant, which presents some additional materials.  Do you have any objection to the Court receiving that affidavit?

MR MACLIVER:   I have no objection, your Honour.

KIRBY J:   The Court will receive the affidavit of the applicant sworn 24 October 2003.  Access to these documents will be restricted to the extent that they identify the applicant by name.  Just one moment, would you explain to the applicant that we have received his affidavit of 24 October 2003, and there is another affidavit of a reverend gentleman of Maylands sworn 17 October 2003, which we will also receive.  There is no objection to that, Mr Macliver?  Yes.  Would you explain to the applicant that the Court has received those two affidavits.

WAPA (through interpreter):   I am requesting the Court on the basis of the affidavit to give me a postponement of this case.

KIRBY J:   I realise that.  What is your attitude to this application, Mr Macliver?

MR MACLIVER:   It is opposed, your Honour.

KIRBY J:   Yes.  Well, the application for an adjournment is refused because this is a very old case.  You arrived in this country as long ago as 1993.  You asked for refugee status as long ago as 1999, and no sufficient basis has been shown for the adjournment of the proceedings, which have been fixed for today for a very long time, and the Court will proceed to conclusion in this case.  Would you explain that to the applicant.

WAPA (through interpreter):   Your Honour, I am requesting that this case has been handled by the Full Court before.  I am seeking if that is possible for me for this case to be heard by a single judge.

KIRBY J:   No.  The applications for special leave must be heard by at least two Justices of this Court, and that is why this is being heard by Justice Heydon and me.  It has to be two Justices.  We are here to hear it.  We have read all the documents.  We know what the case is about and you should proceed with your argument.

WAPA (through interpreter):   I am unable to present arguments with the educated people present here.  I am wondering what I can do.  I am in a very difficult situation.  I respect this Court.  Now, I am in great difficulty.  Kindly, if it is possible, please grant me an adjournment today.

KIRBY J:   Yes, well you have asked for that.  It is opposed by the Minister.  The Court has a file of 123 pages with extensive arguments.  We have additional affidavits that have been presented.  We have read all of this material, and we are here as the highest Court in Australia to hear your application, which we will now do.  Would you tell the applicant that quite a number of people appear before us without lawyers, and I have sat here and sometimes they have succeeded, so that he should simply proceed to advance any oral argument he has.  The case will not be adjourned.

WAPA (through interpreter):   I am very happy about that.  What do I have to do next, your Honour?

KIRBY J:   What was the question?  Well, do you want to say anything in elaboration of the written documents, or can we assume that they set out the entirety of your case?

WAPA (through interpreter):   I help you…..and tell you what I have made in the written submissions.

KIRBY J:   So you want us to consider the written submissions, which we have done, and you have nothing further to say to us to elaborate those written submissions?

WAPA (through interpreter):   I have a few things to say about those written submissions.

KIRBY J:   You do, or you do not?

WAPA:   I do.

KIRBY J:   You do.  Very well.  Well, say them.  You have about another 10 minutes.

WAPA (through interpreter):   The political situation in Sri Lanka is such that I have great fear of returning to Sri Lanka because I know without a doubt that I will be murdered if I go there because I have enemies who have targeted me because of political reasons.  To get rid of me they will not allow me to live.  If I go I will certainly face fear of death, constant. 

Countries of Norway and the United States are trying to settle the situation in Sri Lanka to bring to an end these meaningless murders, but I am still uncertain whether they have been successful to bring this murderous situation to an end.  Therefore Sri Lanka is not yet a peaceful country.  The threats against my life have not ceased in Sri Lanka.  The situation in Sri Lanka has worsened, and the continuing threats against my life are continuing from the news I read about the situation in Sri Lanka.

If my application to become a refugee in this country is accepted there is a possibility that I can get over these various fears and settle down and lead a useful life.  During the last 10 years, whilst I have been seeking this refugee application, I have not received or asked for a single cent from the government.  I suffered a great deal, did not receive any allowance or anything from the government.  I went through a very difficult period because I love my life.  If I go to Sri Lanka my life will not be - I will not be able to live.  I love this country.  I did not ask any help from this country.  I am seeking refugee status because I love my life.

The political situation in Sri Lanka has not improved.  It is still leaving room for murderous action to carry on.  If I go to Sri Lanka I know without a doubt that I will be subjected to death.  Therefore I am pleading with the authorities here that I be granted refugee status to protect my life.  If I go to Sri Lanka I will certainly be put to death.  I do not lie.  I am only saying the reality of the situation.  Everyone loves the country that one is born in.  Everyone loves the country one is born in.  In my case I am saying I cannot go because I love my life.  Everyone wants to live, and in this case I have great love for the country and I like to live.  I know for sure that if I return to my mother country I will be facing death.

KIRBY J:   I think you have said that three times now, so we understand what you are saying.  Is there anything additional that you want to say that is not in the written documents?

WAPA (through interpreter):   I will lead a very simple life in this country, and I am seeking your assistance to help me lead that good life in this country, without harassing or causing any trouble to anybody.  I promise a great deal of honesty and great effort.  I would like to know how many more minutes I have to present my case.

KIRBY J:   About two, two or three.

WAPA (through interpreter):   I am going to face death if I go to Sri Lanka.  I have not brought any further details to discuss or put before the Court.  Therefore I am seeking the Court’s assistance for me to be able to live, because I know for sure if I go to Sri Lanka I will…..to end my life.

KIRBY J:   Thank you.  The Court does not need your assistance, Mr Macliver.

I am going to give the Court’s reasons in this matter.  Those reasons will be put on the transcript.  The transcript will be made available to the applicant later.  If necessary, it can be translated and made available to him later.  Would you explain that to him?  At the end of the reasons I will give him a summary which will be translated in his presence.

When this application came before the Court this morning, the applicant asked for an adjournment of the proceedings.  He did so on the basis that he had been unable to find legal assistance to present his case to the Court.  The facts are that the applicant filed his application for special leave to appeal to this Court in August 2001 in respect of a decision of the Full Court of the Federal Court made shortly before.  The respondent’s arguments were filed shortly thereafter and the reply was filed with commendable speed.  The application book was ready for hearing on 25 October 2001.  The proceedings have been before the Court for a very long time.  They relate to events many years before. 

The Minister opposed the adjournment.  The Court declined to adjourn the proceedings.  The matter then proceeded by oral argument, the applicant relying on the written arguments, which are extensive and which have been supplemented by additional materials placed before the Court today.  The applicant addressed the Court.  He emphasised his fear of death and other disadvantages if he were returned to Sri Lanka.  Such fears are also expressed in the written documents which the Court has considered.  The Court has therefore proceeded to consider the application for special leave to appeal.  That application must be heard by a Court comprising at least two Justices of the Court.  The applicant sought a hearing before a single Justice.  However, given the nature of his proceedings, that would not have been appropriate.

The application for special leave comes from a judgment of the Full Court of the Federal Court of Australia.  The applicant is a Buddhist monk from Sri Lanka.  He sought refugee status in Australia under the Migration Act 1958 (Cth). He arrived in this country in 1993. However, he did not make an application for a protection visa until 1999. His application has been successively rejected by the delegate of the Minister, the Refugee Review Tribunal, a single judge of the Federal Court (Justice R.D. Nicholson) and a unanimous Bench of the Full Court of the Federal Court (Justices Carr, Lindgren and Katz).

In the midst of these proceedings, the applicant was convicted of offences in Australia and imprisoned.  The applicant alleged that he had a well‑founded fear if returned to Sri Lanka of being persecuted for reasons of race, religion, membership of a particular social group and political opinion.  The Tribunal found that the applicant’s claims were exaggerated and often implausible and that he had demonstrated a capacity to believe that many people were conspiring against him.

Essentially, the applicant’s complaint about the decisions and judgment below are that they were affected by error of law in the interpretation of the Act and that they did not observe the procedures required by law.  We are not convinced that any of the complaints made by the applicant has merit.  The applicant may indeed have a subjective fear of returning to Sri Lanka.  However, he has not established that error has occurred in the decisions below, that such fear was not for a Convention ground.  There are no reasonable prospects of success in these proceedings.  Special leave is therefore refused with costs.

Will you translate the following for the applicant.  I have just given the reasons of this Court first for refusing the application for the adjournment.

THE INTERPRETER:   Yes, your Honour.

KIRBY J:   I have then outlined the procedural history of the applicant’s case.  I have explained the nature of his claim and the rejection of that claim in the Tribunal and courts below.  I have indicated that it is our view, having read all the papers, that there are no reasonable prospects of success in these proceedings in the High Court.  I have also explained, therefore, that special leave must be refused with costs.  The transcript of these proceedings will be typed up in the next few days and provided to the applicant.  If he has difficulty in obtaining a translation, he should contact the Registry of this Court. 

(Summary translated)

I express thanks again to you, Mr Interpreter.  The Court will now adjourn in order to be reconstituted for the second application.

AT 10.05 AM THE MATTER WAS CONCLUDED