Yoneo, Nikita v Minister for Immigration & 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.