Mok Gek Bouy v MILGEA

[1993] FCA 825

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JUDGMENT NO. .1..1..1.1..1 .1.111011-

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NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY )	NG 6 of 1993
GENERAL DIVISION	1

BETWEEN :  IZHIM LAY HEAK

Applicant

AND :  MINISTER FOR IMMIGRATIt IN, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS 1 .

Respondent

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CORAM: Burchett J. RECEIVED

pLACp - C.rr4"a.r 1 .

Y. YJU"=J I .

DATE	: 15 November	1993	Ifi	19NOV1993	D )	, ,
1.

This matter is one of a number of proceedings in the Court involving challenges to decisions upon applications to	l
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remain in Australia made by Cambodian "boat people", as they	,
have been called. It is a representative action.	, .
As in the case of some other such proceedings, part of the background is the fact that from June 1990 to May 1991 the	i , L
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represented parties were held in illegal imprisonment at a remote location at Port Hedland on the coast of Western Australia. They are still in custody, but since May 1991
pursuant to legislation authorizing their detention.

The hearing of some questions only, leaving others outstanding for later determination, has been fixed for one week commencing next Monday. I am now asked by the applicant to defer that hearing so that it will take place together with the hearing of the other issues.

This is opposed by the Minister, who says that, the applicant and the represented parties being in custody, the case ought to be dealt with expeditiously. It was not, of course, suggested that Court delays were responsible for the very long time which has already passed. In fact by far the bulk of the time these persons have been confined, in an area so far from reasonably practicable contact with the rest of Australia, has had nothing to do with the Court proceeding, which started less than a year ago. Nor is it suggested the applicant is responsible for the delay which occurred prior to the court proceeding, nor that she has failed to prosecute it with due vigour since it was begun. As I have said, from June 1990 to May 1991, the applicant and those represented by her

were actually in illegal custody. If the matter is now to be further delayed, it will be a	consequence of changes in the rules which will determine where
the persons concerned may spend the rest of their lives. On 19 October changes were announced by the Minister which could have a great impact on their eligibility for entry permits. The precise details of these changes have since undergone some evolution and, the applicant suggests, are still not ineluctably fixed. Regulations have not yet been gazetted, but are due to be gazetted in a few days' time.
While the changes may prove favourable to some of those represented in the proceedings, individual cases may of course be subject to special considerations of their own, and the whole subject of the consequences of alterations of the rules must be considered by those affected. Having regard both to the difficulties imposed on them by incarceration so far from the population centres where legal advice is obtainable, and to the difficulties inherent in their position as strangers in what is for them an alien environment, involving in many cases a language and culture of which they have limited understanding, some time to absorb the effect of the new regulatory regime and to decide upon a course of action is obviously required. The consequences of a wrong decision may be significant, if only in respect of costs.
I am informed that the applicant's solicitors themselves to explain his or her own individual position to each of them. represented parties, and to send a solicitor to Port Hedland need time to analyse the possible effect on each of the
Only then can they begin to decide.
Some may now wish to opt out of the representative proceedings in the changed circumstances.
These are considerations which have been in no way brought about by any default on the part of the applicant, or by anything for which she can be held responsible. In the circumstances, I think the extension of time for opting out and the adjournment sought are reasonable, and should be granted. I note that the ultimate disposal of the case may not in fact be delayed as a result, since there would remain outstanding questions even if the hearing were to proceed as planned, unless the applicant were to be wholly successful.
Furthermore, recent developments in other cases may lead to amendments to the application.
Accordingly, I grant the adjournment sought; I extend the time for opting out in accordance with the short minutes of orders; and I make the further orders set out in the short minutes.

I certify that this and the preceding three (3)

pages are a true copy of the Reasons for Judgment

herein of his Honour Mr Justice Burchett.
Associate:	/11
Date: 18 November 1993
Solicitor for the Applicant:	Mr L.K. Andronos of
Messrs Allen Allen & Hemsley
Counsel for the Respondent:	Mr R. Tracey Q.C. with
Mr A. Cavanough
Solicitor for the Respondent:	Australian Government Solicitor
Date of hearing:	15 November 1993