Yoneo, Nikita v Minister for Immigration and Multicultural Affairs

[1998] FCA 996

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 234  of   1998

BETWEEN:	NIKITA P YONEO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		FINN J
DATE OF ORDER:		29 JULY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 234 of 1998

BETWEEN:	NIKITA P YONEO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	29 JULY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

This is an application for an order of review under part 8 of the Migration Act 1958 of a decision of the Refugee Review Tribunal of 2 March 1998 affirming a decision that the applicant, Nikita P Yoneo, not be granted a protection visa.

The applicant who arrived in Australia on 23 April 1997 and shortly thereafter applied for a protection visa is for relevant purposes to be considered as a Chinese person when in Indonesia.  His claim to be a refugee on a Convention ground relates to what he claims is his well-founded fear of being persecuted for reasons of race.

The applicant has appeared in person in these proceedings as also before the Refugee Review Tribunal and on both occasions he was assisted by an interpreter.  He has prepared his own application for an order to review.  The document specifies two grounds of the application.  The first is that:

“I had suffered from racism violence several times and on two occasions I almost lost my life.  My life in Indonesia was miserable.  While I was working in Bekasi I was brutally attacked by the local youths.  The local authorities didn’t do much but on the other hand they used my own misfortune for their own advantage.  I was systematically and cruelly destroyed by them.  I suffered physical and material lost, and I had to hire a lawyer to close my case.”

That ground is expressed in a more abbreviated form in the following statement of why the applicant was aggrieved by the decision:

“The RRT considered my case as an ordinary criminal case, not a race case, and ignored my physical evidence too.”

The second ground of the application is as follows:

“The lawyer I mentioned above is willing to testify on my case, he will be able to provide such evidence to support my case.  I have mentioned this matter to the Tribunal, but the Tribunal said that it has given me more than enough time, even though I have explained that this is a serious and sensitive matter in Indonesia, it takes time and lots of efforts and through complicated negotiations so that I can get his testimony.”

This again is referred to in shorthand form in the part of the application dealing with why the applicant is aggrieved and again I quote:

“The RRT turned down my request for a little extension of time in order to have my documents of evidence to be produced, even though I have explained this is a sensitive case, and I have to overcome lots of complicated circumstances, in order to have my documents from my witnesses.”

Translating these grounds into grounds which constitute a ground of review under s 476 of the Migration Act it would seem that the first of the grounds to which I have referred invokes s 476(1)(e) of the Act, that there was an error of law of the type referred to in that subsection. The second of the grounds referred to would at best seem to invoke s 476(1)(a) of the Act, that is that procedures required by the Act or the regulations to be observed in connection with the making of the decision were not observed. I apprehend that the claim being advanced by the applicant is that, by not granting the extension of time sought, the Tribunal so acted as to preclude itself in reviewing the decision of the delegate from acting according to substantial justice and the merits of the case under s 420(2(b) of the Act.

This means of invoking this ground raises the difficult body of law considered in and subsequent to the judgment of the Full Court of this court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FLR 300.

The relevant circumstances as discussed in the Tribunal’s decision

The factual narrative of the events referred to in ground 1 is at pages 5 and 6 of the Tribunal’s decision.

“Although he had not completed his degree he had obtained a job at a good wage with a company of which a school friend was a joint owner.  His school friend was of Chinese descent and the company was an ethnic Chinese company.  The Applicant confirmed that, as stated in his original application, he had worked for this company for about eight years, until he had come to Australia.  The factory where the Applicant had worked was in a suburb of Jakarta and one day in 1993 a gang of local youths had attached the factory on the pretext that the company had damaged the road.  The local youths destroyed the factory and the Applicant said that he himself had suffered serious injury.  The youths had been wielding broken bottles and the Applicant had fended them off with his hands.  As a result he had been hospitalised and had required extensive surgery.  His hands still bore the marks and caused him pain, especially in the mornings.

The Applicant said that his employer had paid for his medical treatment.  However the Applicant said that he had tried with the assistance of a solicitor to charge the local authorities.  He considered that the head of the village was responsible for the actions of the youths.  His employer had been pressured by the Government security forces, KORAMIL, not to make an issue out of the incident and his employer had tried to calm the Applicant down and had asked him not to be too emotional.  The applicant said that although he had felt depressed he had continued to work for the company at the same factory because the wages were good and his employer had paid for his medical treatment.  He said that, whereas previously he had occasionally slept at the factory, after the incident in 1993 he no longer did this.  His employers had had to hire security officers to guard the factory at night and the security firms hired personnel from among the local youths.  The Applicant said that he thought this was what the local youths had really wanted:  both they and KORAMIL were making money from the factory.  The police and KORAMIL asked for bribes – ‘cigarette money’ – in order to ensure the future safety of the factory.”

Insofar as the second ground is concerned it is referred to in page 9 of the Tribunal’s decision.  Referring to the applicant the Tribunal said:

“He requested additional time to provide me with supporting evidence from his lawyer relating to the incident at the factory in which he had been injured in 1993.  I indicated to him that I considered that he had already has sufficient time to assemble any evidence in support of his claims.  The applicant said that he had been trying to get in touch with his lawyer but he had moved to Medang.  I indicated to him that I accepted that what he had told me about the incident was the truth.  I said that I was not prepared to allow him extra time to obtain evidence from his lawyer unless he could explain to me how it would change what he had already put forward.  The Applicant indicated that he did not press his request.”

I would interpolate that at the hearing the applicant has controverted at least the final observation made by the Tribunal.

There are additional circumstances to which I should make reference relevant to this issue of an extension of time.

When the applicant lodged his application for review of the delegate’s decision to the Refugee Review Tribunal the reason he specified for making the application was that:

“The Department seemed to ignore and reject my case straight away without giving me enough time to lodge my supplementary documents as evidence.”

Reference was then made to an attached document.  In the attached document the applicant indicated:

“I didn’t and dare not brought the documents or evidence with me while leaving Indonesia because it’s too risky.  Since the refusal on my case by the Department, I have contacted several sources in Indonesia.  Statements or documents as evidence would soon be sent and translated before lodging to the Tribunal.  These evidence will reveal how I was mistreated and suffered as I lived as a minority in Indonesia.”

The application to the Tribunal was lodged on 12 June 1997.  The hearing of the matter was on 10 February 1998, a period of 8 months later.

I now turn to consider the grounds of the application but will deal with ground 2 first.

It is important when considering a matter based on s 476(1)(a) where reliance is placed upon s 420(2)(b) to bear in mind what was said by Davies J in the Full Court in Velmurugu v The Minister for Immigration and Ethnic Affairs (1998) 48 ALD 193 at 196. Davies J says:

“Because s 420(2)(b) imposes a requirement which incorporates both procedural and substantive elements, it is never enough simply to pose the question in the terms:  Did the tribunal in its decision fail to act in accordance with substantial justice and the merits of the case?  The questions must always be posed in the terms prescribed by s 476(1).”

When one asks what was the “procedural element” in question in this case a difficulty exists.  The Tribunal clearly had power under s 427(1)(b) of the Act in the conduct of a hearing to grant an adjournment.  That power carried with it obviously enough power to refuse to grant an adjournment on proper grounds.

How that power relates to s 420(2)(b) is a matter about which I need not speculate in these proceedings.  If I was satisfied that there was no miscarriage at all of the Tribunal’s discretion in exercising its power under s 427(1)(b) then it seems to me there is no basis for further considering whether any question can arise via s 420(2)(b) concerning a failure to follow a procedure required to be observed by the Act.

The applicant, while indicating the event to which the relevant evidence related for which the adjournment was sought, has not indicated the nature of the evidence itself.  In refusing the application the Tribunal indicated that it accepted what the applicant had told it about the incident as being the truth.  The burden of the additional evidence for that reason was not at all apparent to the Tribunal and it indicated that it considered the applicant already had sufficient time to assemble the evidence that he needed.

As I have indicated in the factual narrative this was the self-same matter that the applicant raised when challenging the decision of the delegate in his application to the Review Tribunal lodged on 12 June 1997.  In the circumstances it seems to me no ground can be made out which would justify a challenge to the exercise of discretion by the Tribunal.  If the Tribunal was in fact a court and a judicial discretion was being exercised in relation to the matter it is clearly the case that that exercise of discretion would not be open to challenge on any of the well known grounds referred to in House v The King (1936) 55 CLR 499.  Because I see no conduct at all of the Tribunal in this matter to which objection can be taken it is unnecessary for me to go on to consider whether in any event there has been (via s 420(2)(b)) some failure to follow a procedure required to be observed by the Act and I will not speculate upon that matter.

Accordingly I reject that ground of the application.

Turning now to ground 1.  I should state at the outset that it is also without substance.  It seeks essentially to traverse fact findings and the inferences and conclusions drawn from them by the Tribunal.  The manner in which the Tribunal expressed its findings on this matter is set out in page 12 of the reasons. 

“I accept that the Applicant was seriously injured in an attack by local youths on the factory where he worked but I find on the basis of the Applicant’s own evidence that the motive for the attack was not that the company for which the Applicant worked was an ethnic Chinese company.  Rather, the attack would appear to have been connected to a form of protection racket, in that as a result of the attack the Applicant’s employers hired security personnel from amongst the local community where the factory was situated.  While the Applicant’s evidence suggests that the local police and the Government security forces, KORAMIL, also asked for bribes to ensure the future safety of the factory, there is nothing in the evidence to suggest that in behaving in this way they were motivated by any of the Convention reasons rather than simply by a desire corruptly to enrich themselves.  I do not accept, therefore, that this particular incident, while undoubtedly traumatic for the Applicant, establishes that he has a well-founded fear of persecution by reason of his ethnicity if he returns to Indonesia now or in the foreseeable future.

I likewise do not accept that the Applicant’s failure to succeed in the legal action that he brought against the head of the village whom he held responsible for the actions of the youths in this incident reveals any basis for a fear of persecution by reason of his ethnicity.  There is nothing in the Applicant’s evidence to suggest that the action failed because of his ethnicity or that the police failed to pursue their inquiries into the matter because of his ethnicity.  The Applicant stated in his original application that the authorities were only interested in money but this is simply consistent with the finding I have made above, that the attack itself was in effect part of a protection racket, and that the police among others extorted money from the owners of the factory in return for assurances of the future safety of the factory.  I do not accept that the Applicant’s failure to obtain legal redress against the head of the village can be attributed to discrimination against him by the Indonesian authorities on the basis of his ethnicity and I therefore consider that this aspect of his claims likewise does not provide a basis for a well-founded fear of persecution by reason of his ethnicity if he returns to Indonesia now or in the foreseeable future.”

The factory event is really the centrepiece of the applicant’s case although before the Tribunal he raised some number of other incidents.  His case, while focussing on this event, is that the serious misadventures that befell him which he raised before the Tribunal were, in his view, related to race and thus were related to a Convention ground.

The Tribunal has to be shown to have committed an error of law either in the way it interpreted the applicable law or else that it incorrectly applied the law to the facts as found by it.  So far as the Tribunal’s statement of the law is concerned it has, in my view, formulated it in a way that is unexceptional.  It sets out the various elements of the definition of a refugee having previously set out the significance of the Convention to the scheme of the Migration Act.  It made reference to the various judgments in the High Court in Chan Yee Kin v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379. It gave particular attention to what would constitute persecution. Significantly it had regard to the observations of McHugh J at page 430 which were as follows:

“As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention.”

The Tribunal also noted that the threat need not be the product of government policy and it made reference to the observations of Chief Justice Brennan in “Applicant A” v The Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 334, to the effect that it is enough that the Government of the person’s country of nationality is unable or unwilling to prevent the harm occurring.

I should stress that the Tribunal made no adverse finding as to the applicant’s credit.  It merely considered the question whether the experiences related to it could amount to persecution and whether they did so for a Convention based reason.  It addressed each of the events to which he referred in detail.  In relation to each of them, it concluded that the applicant did not suffer persecution for a Convention based reason.

I have set out in these reasons its analysis and findings on the factory incident.  The Tribunal found as a matter of fact that it was connected to a form of protection racket and that the bribery that subsequently emanated from it was not motivated by any of the Convention reasons, rather it came from corrupt activity.

Even in relation to the applicant’s subsequent and unsuccessful court case, the Tribunal concluded that there was nothing in his evidence to suggest that his application failed because of his ethnicity or that the police failed to pursue their inquiries because of his ethnicity.

While the applicant continues even in this proceeding to assert strenuously that these occurrences were racially motivated and while it may well be the case that the applicant subjectively entertains a fear of persecution on a Convention ground there is, in my view, no basis available for concluding that the Tribunal either misapprehended the legal meaning of “persecution” or the law more generally that was to be applied in a case such as the present, or that it misapplied it when concluding that the incidents upon which Mr Yoneo relied did not amount to persecution.

Accordingly I reject this ground of the application and my order in consequence will be that the application is dismissed with costs. 

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated:             17 August 1998

Applicant appeared in person
Solicitor for the Respondent:	Mr G Peek, Australian Government Solicitor
Date of Hearing:	29 July 1998
Date of Judgment:	29 July 1998