Chew, T.K v The Minister for Immigration & Ethnic Affairs

JUDGMENT No. ....

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CATCHWORDS

MIGRATION - tutor appointed for mentally incapable applicant - whether Minister failed to appreciate the difference between voluntary and involuntary return to Cambodia embodied in the Resolution of the Supreme National Council (SNC) - whether argument should have been allowed on the SNC resolution when it became available - whether the SNC resolution was correctly interpreted - whether lack of guarantees by Cambodian authorities concerning treatment of involuntary returners required consideration - applicant subsequently returned to Cambodia - appeal academic execpt as to costs.

Federal Court of Australia Act 1976, Part IVA

Migration Act 1958, s115(5)

THE MINISTER

FOR

BLACK CJ, LOCKHART and SHEPPARD JJ.

22 DECEMBER 1994

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY )

No. G857 of 1993

) No. G860 of 1993

GENERAL DIVISION

)

No. G866 of 1993

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:

TAING KAY CHEW

LEK KIM SROUN

LIM HOUR

Appellants

AND :

T H E M I N I S T E R F 0 R IMMIGRATION AND ETHNIC AFFAIRS

Respondent

COURT

Black C.J., Lockhart and Sheppard JJ.

DATE

22 December 1994

PLACE

: Sydney

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal of Lim Hour be allowed;

2. The Minister for Immigration and Ethnic Affairs pay one- third of the costs of Lim Hour of the appeal;

3. Leave be reserved to Lim Hour or the Minister to restore this appeal to the list within fourteen days of today if further argument is sought to be put on behalf of Lim Hour on any remaining questions including any further orders that are sought to be made on the appeal including orders as to costs of the proceedings at first instance.

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 )	NO. G857 of 1993 No. G860 of 1993
GENERAL DIVISION	No. G866 of 1993

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN :

TAING KAY CHEW

LEK KIM SROUN

LIM HOUR

Appellants

AND :

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

COURT	:	Black C.J., Lockhart and Sheppard JJ.
DATE :	22 December 1994

PLACE

: Sydney

REASONS FOR JUDGMENT

THE COURT:

One hundred and nineteen Cambodians travelled from Cambodia to Australia by boat which arrived at Koolan Island, off the coast of Western Australia, on 30 March 1990. It was escorted by Commonwealth officers or agents into the port of Broome where it arrived on 2 April. All the people on board were taken ashore and placed in custody. None of them held a valid entry permit.

The people on the boat (known as the "Beagle") travelled to Australia in the hope of being allowed to reside here permanently. They applied for refugee status in Australia. Some subsequently withdrew then applicants and voluntarily left Australia. A few of the Cambodians obtalned refuqee status. Most were refused refugee status in late 1992 by delegates of the respondent, The Minister for Immigration and Ethnic Affairs. The

decisions in respect of the appellants were made on 12 and 13 December 1992 by two different delegates. The delegates refused the applications for refugee status and refused deemed applications for the grant of Domestic Protection (Temporary) Entry Permits or Domestic Protection (Temporary) Visas.

A representative action under Part IVA of the Federal Court of Australia Act 1976 was commenced on 17 December 1992 in respect of these decisions. The representative party was the appellant Lek Kim Sroun. The grounds of review were divided into three categories. Part A specified grounds raising questions of law common to all members of the group of Cambodians. Part B specified grounds peculiar tothe decision concerning Dr Lek, the representative party before the learned primary Judge. Part C referred to issues relating to individual claims of the Cambodians. By the time of the hearing at first instance there were 47 group members in addition to the representative party.

Parts A and B were heard by the learned primary Judge

(Wilcox J.

) , commencing on 31 May 1993.

His Honour delivered

ludgment on 22 June 1993 (the judgment is reported in (1993) 43 FCR 100) and rejected all claims under Parts A and B other than the claim that the Minister was entitled to exercise the discretion conferred on him by S. 115(5) of the Migration Act 1958 (the Act). On 2 and 3 September 1993 his Honour heard Part C of the application. At the commencement of the Part C hearing, counsel for the applicants was granted leave to reopen Part A and

argue a further point concerning the relevant date for assessing refugee status. In a judgment delivered on 8 October 1993 (the judgment is reported in (1993) 45 FCR 100) the primary Judge rejected the further arguments of the applicants on the Part A questions. In relation to the individual applications his Honour dismissed the proceedings except in the case of three applicants for refugee status in respect of whom his Honour held that the delegates had erred in law and that the decisions were to be set aside for reconsideration.

The present appeals were commenced on 29 October 1993. In addition to the present appeals in respect of the three appellants, 35 further individual appeals were lodged which have now been discontinued. A representative appeal was also lodged. A new representative party, Ly Trai, was substituted for Lek Kim Sroun in the representative appeal which incorporated claims common to members of the group of Cambodians. The representative appeal has also been discontinued.

Most of the former appellants who discontinuedtheir appeals did so because they decided to take up the offer of the Australian government to return to Cambodia under the terms of a class of visa known as the Special Assistance Category (SAC) Visa. In addition, three of the former appellants who are ethnic Vietnamese were recently granted refugee status.

Amended notices of appeal for the three remaining appellants in these appeals were filed on 24 and 25 January 1994 incorporating grounds of appeal on common questions of law previously embodied in the representative parties' amended notice of appeal. A further notice of appeal was filed on 28 January

1994 in respect of Lek Kim Sroun.

Two of the remaining three appellants, namely, Taing Kay Chew and Lek Kim Sroun, discontinued their appeals after this Full Court reserved its decision, leavingthe appellant, Lim Hour as the sole remaining appellant. An order was subsequently made by a judge of the Court appointing a tutor to represent the interests of Lim Hour in the appeal because of the evidence establishing his incapacity. Subsequently he returned to Cambodia. When this Full Court was informed of that fact it restored the appeal to the list and asked the parties to explain why Lim Hour had returned to Cambodia when an order had previously been made appointing a tutor on the basis of his incapacity. The Court directed that evidence be filed by the Minister on this question; and an affidavit was later filed on his behalf. This evidence was not challenged and it establishes to our satisfaction that Lim Hour left Australia for Cambodia of his own volition and that in the opinion of officers of the Commonwealth, includingmedicalofficers, he was mentally capable of forming the decision to return of his own free will. Having regard, however, to the circumstances under which the Court

appointed a tutor to represent the interests of Lim Hour in the

appeal it is to be regretted that the departmental officers involved in the matter did not recognize that the tutor, who had a responsibility in respect of the appeal to both Lim Hour and to the Court, should have been informed of the change in Lirn Hour's mental state and of his wish to return to Cambodia. This should have happened promptly so that the tutor could have made his own assessment of the situation as it affected him as tutor and so that he could, if thought appropriate, have sought

directions from the Court.

Lim Hour's appeal has not been discontinued although in the result it has become academic except as to costs. But the tutor for Lirn Hour (the only remaining appellant) doubtless is in the position where he cannot obtain instructions because the hypothesis on which he was appointed is the incapacity of Lim Hour who is not here but has returned to Cambodia.

Another appeal was heard by the same bench of the Court in Melbourne, concerning a MS Mok. There was substantial correspondence between some of the issues in Mok and the present appeals. We have dealt with the common issues in our judgments in Mok which were delivered immediately before the giving of this judgment. Some questions arose in Mok which did not arise in these appeals before us. Likewise, some questions arose in the present appeals which did not arlse in Mok. It is to these lastmentioned questions that we now turn. Before doing so, hmever, we observe that there were many issues before Wilcox J.

He made findings with respect -to them in his reasons for judgment. Many of them were the subject of the amended notices of appeal; but on the hearing of the appeals by the three then remaining appellants, the argument was confined to some only of the grounds of appeal previously raised. The arguments were conveniently dealt with under various headings in the course of submissions before us and we propose to consider them under the same headings. Some arguments were pressed more strongly than others and some were but faintly pressed.

It was argued that the primary Judge erred in the following

respects

in finding that the delegates of the Minister did not fail to appreciate the difference between voluntary and involuntary return to Cambodia. The existence of the distinction was said to be fundamental and to be embodied in the Paris Peace Agreements, the Resolution of the Supreme National Council (the SNC Resolution) and the Draft Memorandum of Understanding. The distinction was said to be between persons who return to Cambodia voluntarily (this being a wide notion to include at the one extreme those who in every way of their own free will wish to return and at the other extreme those who do not necessarily wish to return at all, but nevertheless for whatever reason make a decision that they will return) and involuntary returners who, against their will, are compulsorily returned to

Cambodia by the country in which they are held or reside. It was said that the Cambodian government has given assurances pursuant to the Paris Peace Agreements and the SNC Resolution and the Draft Memorandum of Understanding that it will safeguard the interests of voluntary returners, but not involuntary returners. It was conceded that there is nothing in the material to suggest how the Cambodian authorities will in fact treat involuntary returners. The fact that the Cambodian authorities

recognize the distinction, indeed, insisted on the

distinction in the Paris Peace Agreements and the SNC Resolution and the Draft Memorandum of Understanding, was said to indicate by implication that involuntary returners have no guarantee of their safety and more likely than not will be ill treated or persecuted in some way.

in failing to consider or allow the appellants to reargue the question of voluntary or involuntary returners in light of the full text of the SNC resolution of April 1992 becoming available to the appellants after the judgment of Parts A and B on 22 June 1993 and prior to the hearing of Part C on 2 and 3 September 1993. This is essentially a natural justice point.

in holding that the appellants failed to make good the

submission that the decisions of the delegates were

defective because the delegates failed to appreciate the

difference between voluntary and involuntary return;

in wrongly interpreting the contents of the SNC Resolution;

in having his decision based upon materials whlch included an interpretation by the delegates of the SNC Resolution which did not truly reflect the contents of that document in that it did not draw the distinction between voluntary and involuntary returners.

in failing to address the question whether the failure to provide guarantees as to the future conduct by the Cambodian authorities towards involuntary returners provided grounds for consideration under the Convention.

We have considered these findings of his Honour and the submissions made to us by counsel for the parties. In our

opinion it has not been established that his Honour erred in any

of these findings.

In our reasons for judgment in Mok we found that the relevant decision maker (Mr Paterson) misdirected himself on the question whether there was "a real chance" that a person may be persecuted on return to another country. We concluded that Mr Patterson misunderstood the meaning of the term "well-founded fear of belng persecuted" and upheld the conclusion of the learned primary Judge in Mok on that point.

The same point is involved in the present appeal of Lim Hour. We shall therefore allow Lim Hour's appeal on that question, but shall not proceed to make any further or other orders except as to costs. In view of the fact that Lim Hour has returned to Cambodia and the appeal is substantially academic, if counsel for Lim Hour or his tutor wishes to make any further submissions to the Court on further orders to be made, the matter may be restored to the list on seven days' notice, provlded this course is taken within fourteen from today's date. The appropriate order for costs is that the Minister should pay one- third of the costs of Lim Hour of his appeal.

The orders of the Court are as follows:-

1. That the appeal of Lim Hour be allowed;

2. That the Minister for Immigration and Ethnic Affairs pay one-third of the costs of Lim Hour of the appeal;

that are sought to be made on the appeal including orders

as to the costs of the proceedings at flrst instance.

I certify that this and the

preceding nine (9) pages are a true copy of the reasons for judgment herein of 'the Court.

Associate &LJdJ% p&---

Dated: 22 December 1994

Counsel for the Appellants	Mr D Catterns QC MS K M Guilfoyle
Solicitors for the Appellants :	Blake Dawson Waldron
Counsel for the Respondent	Mr R R S Tracey QC Mr A Cavanough
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing	15, 16 February 1994
Date of Judgment	22 December 1994

[1994] FCA 1053

22 Dec 1994