Mok Gek Bouy v the Minister of Immigration, Local Government and Ethnic Affairs and Malcolm Paterson [1993] FCA 545;

Mok Gek Bouy v the Minister of Immigration, Local Government and Ethnic Affairs and Malcolm Paterson [1993] FCA 545; - FCA 1993 case summary — Zoe

[25]

(p 15-16) "The facts, in the context of which those

questions fall to be answered, were agreed by the parties for

the purposes of the stated case. In the following summary of

them, the quotations are from the stated case.

The plaintiffs are all Cambodian nationals. They fall

into two groups. The first group ("the firstnamed

plaintiffs") arrived in Australian territorial waters by boat

on or about 27 November 1989. All but one of the second group

("the secondnamed plaintiffs") arrived in Australian

territorial waters by boat on or about 31 March 1990. . . .

None of the plaintiffs "entered Australia holding a

valid entry permit". They have all "been detained in custody

since their arrival". On or about 8 December 1989, the

firstnamed plaintiffs applied to the Minister . . . for

refugee status within the meaning of the international

Convention and Protocol Relating to the Status of Refugees

("the Refugee Convention and Protocol"). On or about 9 and 10

May 1990, the secondnamed plaintiffs made similar

applications. The applications by the firstnamed plaintiffs

for refugee status were all rejected by delegates of the

Minister on or about 3 and 4 April 1992. Those of the

secondnamed plaintiffs were all rejected by delegates of the

Minister on or about 5 and 6 April 1992.

Proceedings seeking an order of review in respect of the

decision to reject the applications for refugee status were

instituted by the plaintiffs in the Federal Court of

Australia. Between 6 and 14 April 1992, a judge of that Court

made orders preventing the removal of the plaintiffs from

Australia. On 15 April 1992, pursuant to s. 16(1)(a) and (b)

of the Administrative Decisions (Judicial Review) Act 1977

(Cth), the Federal Court set aside each of the decisions

rejecting the plaintiffs' applications for refugee status and

ordered that the matters to which those decisions related be

referred back to a delegate of the Minister for determination.

The Federal Court also ordered that outstanding applications,

which the plaintiffs had made in the proceedings, for orders

that they be released from custody be adjourned for hearing

commencing on 7 May 1992.

On 5 May 1992, that is to say two days before the

hearing of the plaintiffs' applications for orders for release

from custody was due to commence in the Federal Court, the

Parliament of the Commonwealth passed the Migration Amendment

Act 1992 (Cth) ("the Amending Act") which inserted a new

Division - Div. 4B - after Div. 4A of Pt 2 of the Act. The

Amending Act received the Royal assent on 6 May 1992.

Division 4B became operative from that date. As will be seen,

it provides, inter alia, for the compulsory detention in

custody of certain non-citizens who come within the definition

of a "designated person" for the purposes of Div. 4B. The

stated case expressly states that the "plaintiffs fall within"

that definition. . . . "

[29]

(p 21) "The plaintiffs had, at the time of the commencement of

Div. 4B (6 May 1992), been held in custody for . . . a little

over two years in the case of the secondnamed plaintiffs. . .

. (T)he view was apparently taken by the Minister's

Department that, in a case where a vessel can never leave

because it has been destroyed, temporary custody under s.

88(1) and (2) can continue indefinitely. As has been seen,

however, that approach to the construction of the section was

mistaken.

(p 22) The result is that the continued detention of each

plaintiff in custody after the destruction of the boat . . .

was unlawful. Thereafter, and continuing to the time of the

commencement of Div. 4B, each of the plaintiffs was entitled

to approach this Court, or any other court of competent

jurisdiction, to obtain an order for his or her release.

. . .

(p 24) Finally, and most significantly, s. 54N authorizes the

arrest and detention in custody of a designated person . . .

"even" if he or she had been released from custody pursuant to

an order "by a court" (s. 54N(2)). Indeed, in the context of

the pending proceedings in the Federal Court, it appears that

one of the objects of the Act was to clothe with legislative

authority the custody in which the "boat people" were being

kept, a custody that might have been brought to an abrupt end

once a court ascertained that that custody was unlawful.

(p 25) Accordingly, the questions reserved by the stated case

must be approached on the basis that: (i) none of the

plaintiffs is an "illegal entrant"; (ii) none of the

plaintiffs has committed any offence against the Act or any

other law; (iii) each of the plaintiffs was unlawfully held in

custody at the commencement of Div. 4B; and (iv) if the

provisions of Div. 4B are completely valid, they authorize the

Department, by administrative "designation", effectively to

direct and enforce the compulsory detention in custody (ss.

54L, 54M, 54N) of any person in the situation of the

plaintiffs, under a regime where no court can, while such a

person remains "a designated person", "order (his or her)

release from custody" (s. 54R).

. . .

(p 35-36) Section 54R provides that a court "is not to order

the release from custody of a designated person" . . . The

section must, however, be read with s. 54U which provides that

a statement by a Departmental officer that the Department has

given a person "a designation described in paragraph (e) of

the definition (of designated person)" is "conclusive

evidence" of that fact . . . if a person does satisfy all

those elements and is a "designated person" for the purposes

of the Division, s. 54R purports to direct the courts,

including this Court, not to order his or her release from

custody regardless of the circumstances. . . . In fact, of

course, it is manifest that circumstances could exist in which

a "designated person" was unlawfully held in custody by a

person purportedly acting in pursuance of Div. 4B. . . . it

necessarily follows that the provision of s.54R is invalid . . .

. . .

(p 36) A law of the Parliament which purports to direct, in

unqualified terms, that no court, including this Court, shall

order the release from custody of a person whom the Executive

of the Commonwealth has imprisoned purports to derogate from

that direct vesting of judicial power and to remove ultra

vires acts of the Executive from the control of this Court.

Such a law manifestly exceeds the legislative powers of the

Commonwealth and is invalid. Moreover, even to the extent

that s. 54R is concerned with the exercise of jurisdiction

other than this Court's directly vested constitutional

jurisdiction, it is inconsistent with Ch. III. In terms, s.

54R is a direction by the Parliament to the courts as to the

manner in which they are to exercise their jurisdiction. It

is one thing for the Parliament, within the limits of the

legislative power conferred upon it by the Constitution, to

grant or withhold jurisdiction. It is a quite different thing

for the Parliament to purport to direct the courts as to the

manner and outcome of the exercise of their jurisdiction. The

former falls within the legislative power which the

Constitution, including Ch. III itself, entrusts to the

Parliament. The latter constitutes an impermissible intrusion

into the judicial power which Ch. III vests exclusively in the

courts which it designates.

. . .

No separate argument was addressed to the validity of

s.54U. Obviously, it is strongly arguable that the

considerations which lead to the conclusion that s. 54R is

invalid are equally applicable to a section which purports to

provide that a Commonwealth officer may pre-empt inquiry by

the courts about whether a person who satisfies the first five

elements of the definition of "designated person" has been

designated - or purportedly designated - by the Executive as

being subject to compulsory detention provisions. . . . we

refrain from expressing any concluded view about whether it is

invalid by reason of its own content."

[46]

"A. The decisions or conduct for the purpose of making

the decisions were taken in breach of the rules of

natural justice in connection with the making of

the decision.

Particulars

(a) There was reasonable apprehension that the

First Respondent and his delegates including

the Second Respondent were biased since no

cogent reason was given for preferring the

advice of the Department of Foreign Affairs

and Trade (DFAT) over the reports prepared

by Dr. Dennis Shoesmith.

(b) There is no evidence that the First

Respondent or his delegates including the

Second Respondent have considered all the

information put before them by or on behalf

of the Applicant or available to them from

other sources.

(c) The Second Respondent having been apprised

of the expert views of Dr Shoesmith ought

not to have made the decisions he did

without giving the Applicant or her advisers

any proper opportunity to comment on

material adverse to or at odds with that of

Dr Shoesmith;

(ca) The Second Respondent had before him and/or

relied upon material adverse to the

Applicant namely, the "Mission Report

Voluntary Repatriation Port Hedland" (the

"Fordham Report") referred to in the reasons

for decision of the Second Respondent dated

12 November, 1992 without giving the

Applicant any or any adequate notice of the

Fordham Report or any adequate opportunity

to put material before or make submissions

to the Second Respondent on the issues

addressed in that Report.

(d) The First and Second Respondents applied a

policy to reject the Applicant for refugee

status irrespective of the merits of her

claim.

(da) Each of the First Respondent and the

officers of the Department of Immigration,

Local Government and Ethnic Affairs ("the

Department") involved in the assessment

and/or determination of the Applicant's

application for refugee status including the

Second Respondent was biased and/or

unlawfully prejudged or pre-determined the

outcome of that assessment or that

application without regard to the merits of

the application by reason of a rejection

mentality or an institutional bias

prevailing and taking effect in or

throughout the Department or there was or is

a reasonable apprehension of such bias,

unlawful prejudgment or pre-determination.

(e) The First and Second Respondent by the use

of and adoption of standard paragraphs

engaged in conduct which deprived the

Applicant of procedural fairness in the

consideration, assessment and determination

of her claim for refugee status.

(f) The decisions of the First and Second

Respondents were illogical and were based on

inferences and findings which were

unsupported by probative material.

(g) The Second Respondent relied upon earlier

decisions and the reasons therefor of

Gregory Mills and/or the Refugee Status

Review Committee (the RSRC) in coming to his

decision to reject the Applicant's

application for refugee status without

himself having any or any proper regard to

the material supporting the Applicant's

claim.

B. Procedures that were required by law to be

observed in connection with the making of the

decision or conduct for the purpose of making the

decision have not been observed.

Particulars

(a) A policy decision was taken to reject the

Applicant and others rather than consider

their applications for Refugee Status

according to the relevant law and procedures

applying to refugee applications.

(b) A procedure involving the consideration of

selective material unfavourable to the

Applicant's case was adopted by the First

Respondent and/or his delegates including

the Second Respondent rather than a

procedure which allowed for a proper

consideration to be undertaken.

(c) The First Respondent and the officers of the

Department including the Second Respondent

commenced the process of assessing or

determining the Applicant's application for

refugee status with a presumption, or

predisposition to find, that the Applicant

together with the other Cambodian boat

people were not refugees within the meaning

of the Migration Act 1958 and the Convention

and Protocol.

(d) The Second Respondent, unlawfully and/or

improperly-

(i) was influenced by;

(ii) had regard to;

(iii) was guided to -

(ww) the recommendations of the members

of the RSRC; and/or

(xx) their reasons or the summing-up of

their meeting or meetings; and/or

(yy) the experience and attributes of

the members of the RSRC; and/or

(zz) his opinion that the RSRC was an

independent body and/or that it

provided an independent assessment

of the Applicant's case which gave

him guidance in making the

decision.

C. The making of the decisions was an improper

exercise of power conferred by the Migration Act

1958 in that irrelevant considerations were taken

into account.

Particulars

(a) The First Respondent and/or his delegates

including the Second Respondent acted in

accordance with a rule or policy of the

government that recognising Cambodian asylum

seekers as refugees would send a signal to

the rest of Asia to come to Australia.

(b) The First Respondent and/or his delegates

including the Second Respondent acted in

accordance with a rule or policy of the

government that recognising Cambodian asylum

seekers as refugees would undermine the

Cambodian Peace Process and Australia's role

in that process.

(c) The First Respondent and/or his delegates

including the Second Respondent relied on a

generalised interpretation of the current

situation without proper regard to the

Applicant's personal circumstances.

(d) The First Respondent and/or his delegates

including the Second Respondent acted on

advice regarding voluntary repatriation to

Cambodia, including the Fordham Report in

making the decision as to the Applicant's

status as a refugee.

(e) The First Respondent and/or his delegates

including the Second Respondent by using and

applying standard paragraphs sought to and

did apply a policy of rejection of the

Applicant's claim without regard to its

merits.

(f) The Second Respondent relied upon earlier

decisions and the reasons therefor of

Gregory Mills and/or the RSRC in coming to

his decision to reject the Applicant's

application for refugee status without

himself having any or any proper regard to

the material supporting the Applicant's

claim.

(g) The Second Respondent, unlawfully and/or

improperly-

(i) was influenced by;

(ii) had regard to;

(iii) was guided by -

(ww) the recommendations of the members

of the RSRC; and/or

(xx) their reasons or the summing-up of

their meeting or meetings; and/or

(yy) the experience and attributes of

the members of the RSRC; and/or

(zz) his opinion that the RSRC was an

independent body and/or that it

provided an independent assessment

of the Applicant's case which gave

him guidance in making the

decision.

D. The making of the decision was an improper

exercise of power in that relevant considerations

were not taken into account.

Particulars

(a) Material on the Country Files for or

relating to the State of Cambodia which

supported in whole or in part the

Applicant's claim for refugee status.

(b) All material referred to or supplied by or

on behalf of the Applicant and other

Cambodian Refugee claimants in support of

her or their claims for refugee status.

(c) The contents of newspaper clippings and

other documentary evidence provided to the

Respondent and/or his delegates.

(d) The Applicant's fear as evidenced by her

preference to die rather than return to

Cambodia.

(e) An accurate assessment of the current and

past conduct of the Khmer Rouge, including:

(i) the fact that the Khmer Rouge have

refused to disarm and have, at all

material times operated as a military

force;

(ii) the Khmer Rouge have a share in

governmental power and can operate

freely in the capital city Phnom Penh

and elsewhere in Cambodia;

(iii) the Khmer Rouge military forces

are fighting with Hun Sen

government forces in and around

Phnom Penh;

(iv) the Khmer Rouge have a military

presence, capacity and intention which

extends beyond areas currently

considered to be under its control;

(v) the terrorist techniques of the Khmer

Rouge in the infiltration of villages

in Cambodia.

(f) The fact that the United Nations has been

unable to verify total withdrawal of

Vietnamese troops from Cambodia.

(g) The inability of the Cambodian government

and legal system to protect Cambodian

nationals from persecution.

(h) The interim nature of the Supreme National

Council's governing role in Cambodia.

(i) An accurate assessment of the instability

and violence affecting ordinary civilians in

Cambodia.

(j) The Applicant's claims based on her Chinese

ethnic background;

(k) That the perception of the authorities will

be different towards involuntary returnees.

(l) The Applicant's claims based on her

religious beliefs.

(m) The reports of Dr Dennis Shoesmith.

(n) The suffering of the Applicant and of her

family at the hands of the Khmer Rouge.

(o) The date of the Applicant's departure from

Cambodia.

E. The making of the decision and conduct for the purposes

of making the decision involved an error of law.

Particulars

(a) The First Respondent and/or his delegates

including the Second Respondent misunderstood the

term "well-founded" in respect of a fear of

persecution by requiring that there be a much

stricter test than that there be real chance of

persecution.

(b) The First Respondent and/or his delegates

including the Second Respondent erred in finding

that discrimination because of the Applicant's

Chinese ethnic background could not amount to

persecution within the 1951 United Nations

Convention Relating to the Status of Refugees and

related Protocol of 1967.

(c) The First Respondent and/or his delegates

including the Second Respondent erred in finding

that the cumulative effect of the Applicant's

experiences and the likelihood that she would face

similar experiences should she return to Cambodia

did not justify a well-founded fear of

persecution.

(d) The First Respondent and/or his delegates

including the Second Respondent failed properly to

consider whether the Applicant had a well-founded

fear of persecution at the time of her departure

from Cambodia and/or at the time of her

application, and further whether there had been

substantial change so as to remove such a claim.

(e) The First Respondent and/or his delegates

including the Second Respondent wrongly considered

that the Applicant's experiences of sexual assault

were not Convention related;

(f) The First Respondent and/or his delegates

including the Second Respondent failed to consider

the Application for Refugee Status properly or at

all having determined as a policy that the

application would be refused prior to purporting

to consider same.

(g) The First Respondent and/or his delegates

including the Second Respondent erred in deciding

that a political profile can only be established

if there is evidence as to actual political

opinion.

(h) The First Respondent and the officers of the

Department including the Second Respondent erred

by commencing the process of assessing or

determining the Applicant's application for

refugee status with a presumption, or

predisposition to find, that the Applicant

together with the other Cambodian boat people were

not refugees within the meaning of the Migration

Act 1958 and the Convention and Protocol.

(i) The Second Respondent, unlawfully and/or

improperly-

(i) was influenced by;

(ii) had regard to;

(iii) was guided by -

(ww) the recommendations of the members of

the RSRC; and/or

(xx) their reasons or the summing-up of

their meeting or meetings; and/or

(yy) the experience and attributes of the

members of the RSRC; and/or

(zz) his opinion that the RSRC was an

independent body and/or that it

provided an independent assessment of

the Applicant's case which gave him

guidance in making the decision.

F. There was no evidence or other material to justify the

findings made by the Second Respondent as to the

following facts:

Particulars

(a) That involuntary returnees will not be subject to

adverse treatment.

(b) That there are areas sufficiently safe and stable

to which the Applicant could return.

(c) That the Applicant's testimony lacks credibility.

G. The decisions were so unreasonable that no reasonable

person could have so decided.

Particulars

(a) The First and Second Respondents have given

excessive weight to irrelevant, unsubstantiated

matters and little if any weight to relevant

matters.

(b) It was unreasonable to rely on the reports of DFAT

in preference to other material on the alleged

basis that the DFAT material "is more recent and

collected by impartial and professional officers

based in Cambodia".

(c) It was unreasonable to rely on the reports of the

DFAT on the basis that the reports were more

current than the article of Dr Shoesmith dated 17

February 1992 and at the same time maintain that

the situation in Cambodia is sufficiently stable

to conclude that there is no real chance of the

Applicant being persecuted.

(d) It was unreasonable to make a decision based on

policy rather than on the facts as they pertained

to the Applicant.

(e) It was unreasonable not to have regard to all

material of the Cambodian Country Files.

(f) It was unreasonable not to have regard to the

Shoesmith report of August 1992.

(g) It was unreasonable to use and adopt standard

paragraphs in the reasons for decision of the

Second Respondent.

(h) It was unreasonable to pay more regard to and/or

to have regard solely to reports and

communications from DFAT rather than considering

all available material properly or at all.

(i) It was unreasonable that the Second Respondent

relied upon earlier decisions and the reasons

therefor of Gregory Mills and/or the RSRC in

coming to his decision to reject the Applicant's

application for refugee status without himself

having any or any proper regard to the material

supporting the Applicant's claim.

H. The decision or conduct for the purposes of making the

decision constituted an exercise of a discretionary

power in accordance with a rule or policy and without

regard to the merits of the particular case.

Particulars

(a) A policy that it is safe to return to Cambodia

without genuine regard to the Applicant's claims.

(b) A policy that rejecting Cambodian asylum seekers

would send a signal to the rest of Asia not to

come to Australia.

(c) A policy to reject Cambodian asylum seekers.

(d) A policy to adopt the use of standard paragraphs.

(e) A policy to prefer, without full consideration

material emanating from DFAT rather than other

relevant material.

I. The making of the decisions were an improper exercise of

power in that they involved an exercise of power at the

direction or behest of another person.

Particulars

The First Respondent and/or his delegates including the

Second Respondent have blindly followed reports of the

Department of Foreign Affairs and Trade without

question."

[52]

" The following points were prepared for use in answering

any press enquiries about boat people from Cambodia and

Australian contacts with the Phnom Penh authorities on this:

. The problem of Cambodian boat people arriving in

Australia has been discussed in the course of contacts

with the authorities in Phnom Penh

- We confirm that the Phnom Penh authorities have

said that they will only receive back people who

return voluntarily and that such people would not

face persecution on their return

. The determination of refugee status (DORS) committee has

yet to determine whether the boat people from Cambodia

who have arrived in Australia are refugees

- The findings of the committee will be made

available to the Minister for Immigration, Local

Government and Ethnic Affairs.

2. Following for your information is text of Prime Minister's

comments on the boat people from Cambodia in TV interview with

Jana Wendt on 6 June.

Text begins

Wendt: We woke up this morning to read that we're asking

the Cambodian Government to take back some of the Cambodian

boat people who came to our shores. Why are we doing that?

PM: For the obvious reason. I mean, we have - - - a

compassionate humanitarian policy which will stand comparison

with any other country in the world. But we're not here with

an open door policy saying anyone who wants to come to

Australia can come. These people are not political refugees

(emphasis added).

Wendt: How can you be sure of that, Mr Hawke?

PM: Simply there is not a regime now in Cambodia which is

exercising terror, political terror, upon its population.

Wendt: What do you make then of these hundreds of people-

PM: What we make -

Wendt: - Who get on their tin boats and travel across - - -

PM: What we make of it is that there is obviously a

combination of economic refugeeism, if you like. People

saying they don't like a particular regime or they don't like

their economic circumstances, therefore they're going to up,

pull up stumps, get in a boat and lob in Australia. Well

that's not on (emphasis added).

Wendt: And risk their lives to do it?

PM: Their lives is not, I mean, we have an orderly migration

program. We're not going to allow people just to jump that

queue by saying we'll jump into a boat, here we are, bugger

the people who've been around the world. We have a ratio of

more than 10 to 1 of people who want to come to this country

compared to the numbers that we take in.

Wendt: And you personally have no qualms about that?

PM: Not only no qualms about it, but I will be forceful in

ensuring that that is what's followed (emphasis added)

Ends"

[105]

"(p 606) (MR ROSE) You walked into the witness box with a

folder, did you not? --- Yes.

What is that folder? --- Papers, our documents from the files,

the departmental files, that is.

(p 607) Well, is the position then, Mr Simington, that you

have gone to these departmental files that you have access to

and drawn out the papers that you believe can assist you in

your recollection of events? --- Certainly. I think it's very

important to be in a position to recollect accurately.

So the position is that when we go back to 1989 and ask for

your involvement giving advice are you able to then, through

using the file you have with you, tell us what your

involvement was? --- No, I'm sorry. I've already (sic) I

can't recall and the files aren't a great deal of help to me.

Not everything one does or says is recorded on a file. . . .

At the time you became aware that the people on the first

boat, the Pender Bay, were making a claim for refugee status,

which is one, two or three weeks after they arrive, did you

have any concern at that stage there may be a major outflow of

boat people from Cambodia? --- I wouldn't link, I wouldn't

think the question of whether or not these people had sought

refugee status or not is relevant. The issue that I think

you're trying to - - -

Well, perhaps you can answer my question rather than - - - ?

--- Well, I'm trying.

Did you have a major concern, yes or no? --- I would've had a

concern about a boat arriving in North West Australia from

Cambodia. I would have been concerned about the implications

of that.

What was your concern about the implications? --- What did it

mean?

Did you have a view as to what it meant? --- I think over that

period there would have been a view which I certainly would've

expressed.

Can you tell me what that view is? --- There was the

possibility that there could be a renewal of a boat exodus, if

you want, from Indo China as (p 608) much along the pattern

that had been occurring from Vietnam for the previous 10 or 11

years.

Had the department you worked in and the section you worked in

been hearing rumours that boats were going to sail from

Cambodia for Australia? --- Yes, I - I couldn't be precise as

to the time at which those rumours as you suggest, began to

circulate - within, that is, a few weeks.

. . .

HIS HONOUR: Mr Simington, you said a moment ago, there would

have been a view and that you would have expressed it, that

there could be an exodus from Cambodia. To whom did you

express that view? --- This would have been in formal

conversations about this. If your Honour - and I assume we

are talking about the first weeks as it were, after the

arrival of the boat at Pender Bay in November 89. At that

stage we were already receiving indications that there was a

great deal of interest.

A great deal of? --- A great deal of interest in organisers

putting people on boats and sending them, not so much

necessarily to Australia, but out of Cambodia. Our principal

source of information by my recollection at that (p 609) time,

would have been UNHCR, the United Nation, the Office of the

United Nations of the High Commission for Refugees.

Yes. I do not think you have answered my question. It is to

whom you expressed those views? --- In the absence of records

on paper it is very difficult to be precise, but had I been

asked by the minister that presumably is the advice I would

have given. The secretary of the department. We were after

all in receipt of - by that stage, a degree of information

from overseas, from overseas sources. As I've said,

principally from the United Nations, that this was a

possibility.

. . .

MR ROSE: . . . I asked you before whether or not there had

been rumours of boat sailing. Is that the position? --- Yes,

I think, as I have explained.

Yes. And that was causing you some concern, was it? ---

Concern because it was an issue that would - that was going to

confront the minister, going to confront the government. . . .

HIS HONOUR: Mr Simington, the question that you were asked is

whether you at that time had any view as to whether they were

genuine, not what their race or nationality was? --- Your

Honour in that sense the moment people in this situation

sought asylum as refugees the issue of what I thought I would

hope was of no longer any relevance.

MR ROSE: Well, can you answer the question though, did you

have a view? --- I would have had a personal view but I - - -

(p 610) Well what was that view? --- But I don't believe that

my personal views - - -

What was that view? --- My view I suppose was that there was a

very strong possibility that these people were as was being

suggested by reports we were receiving people who were wanting

to leave Cambodia or leave Cambodia having come from somewhere

else to migrate to Australia.

Was your view that these people were potentially economic

refugees? --- Potentially of course.

MR ROSE: And was that a view that others at a senior level

within the department to your knowledge held? --- I could not

talk about the views and particularly the private views of

other officers. . . .

(p 611) Now, are you able to say whether that report was

accurately addressing the fears that I have been raising with

you? --- I am sorry, I don't understand the - what you mean by

"fears". . . .

(MR ROSE:) Mr Simington, I have asked you about fears of an

outflow coming to Australia and also the concept that these

people are economic refugees. Does that cablegram address

those issues? --- I think it - yes, it addresses those issues,

yes. . . .

(p 612) MR TRACEY: This particular cablegram came from the

Australian Embassy in Bangkok. It came to Foreign Affairs

Department in Canberra and it bears the date of 18 January

1990. . . .

(p 617) And it supports the proposition I was putting to you

that there are rumours of Cambodian boat refugees set to sail

for Australia. Would you agree with that? --- Yes.

And would that be of some concern to the Department of

Immigration? --- If the rumours were true, yes.

And is there also a suggestion that these rumoured boats are

relatives of people who have already sailed for Australia? ---

Well, that is what the telegram says, yes.

And would that be of concern? --- It is a question of what you

mean by concern. It's an explanation of the situation being

reported.

Was there a concern that there was going to be a potential

flow or outflow from Cambodia? --- I think that is what this

text suggests, yes. . . .

(p 618) Would you have a look at the bottom paragraph,

paragraph 5 - in the third last line, where it says:

The decision of those who are already in Australia will

obviously be of significant influence to any potential

flow.

? --- Yes.

Can you tell me what you understood when you got this document

and what that meant? --- I read that and as I read it today as

coming in the context of the reported rumour that there was a

mass exodus or there was a potential exodus of boats from

Cambodia that the judgment being in the minds of UNHCR and

others that this was - this was a migration exodus. The fact

would be and the judgment would be that if people were able to

successfully reach Australia and stay as migrants then of

course many other people would come. That is the context not

the question of refugee or not. . . .

(p 620) (MR ROSE:) Now it is quite clear, is it not, that

the paragraph 5 sentence . . . is relating to a consideration

of whether or not they get refugee status? --- Well, yes, that

is a construction that you could put on it but I didn't draft

this telegram. (Exhibit CS1)

I am not suggesting you drafted it, that is the proper

construction of the telegram, is it not? --- I wonder if it

is, I wonder if it is. . . .

MR ROSE: Mr Simington, what do you understand or what did you

understand at the time you first came across this telegram to

mean? --- I find it difficult to repeat the exact words but I

will attempt to reconstruct my earlier answer your Honour. I

took the last sentence to turn on the issue of whether for

whatever motivation these people had come to Australia for was

to be successful. Now the presumption behind this report as I

read it (p 621) then and as I read it now is that these people

were seeking to migrate to Australia.

As refugees Mr Simington? --- I submit that that is not and

was not an issue and it was probably not in the mind of the

drafter of this report.

MR ROSE: Do you read it today, Mr Simington, as indicating

that if there is a favourable decision of allowing these

people to stay that that might influence an outflow from

Cambodia? --- I believe that is correct, yes.

And that from the very earliest days was a concern of the

Department of Immigration, was it not? --- A fairly natural

concern to a ministry that is responsible for the control of

Australia's borders, yes.

Yes. There was a concern, was there not, that Australia did

not want a problem of having to deal with a lot of people

trying to come in and remain in Australia? --- I think that's -

I'm not terribly sure of the construction you want to put on

that - basically, governments do tend to believe that this

kind of issue is one that needs to be considered as very

important, yes. . . .

(p 626) Mr Simington, by the middle of 1990 was there a

prevalent view within the government circles and within the

Department of Immigration that these Cambodian boat people,

who had been arriving and making claims for refugee status,

were simply not refugees? --- I don't believe I can honestly

answer that question because I just don't know the answer to

that. . . .

(p 632) Are you able to give any information as to what those

elaborate lengths were. Are we talking about written

communication, television interview, speech in parliament or

what are we talking about? --- A number of public statements . . .

Well as you have now got notice of it would it be possible for

you to search your files or whatever else is available to you

with a view to getting more information on it? --- Well the

odds are your Honour it is not on these files.

Some more information on it? --- The odds are it is not on

these files but certainly I can try to track this sort of

thing down.

MR ROSE: Mr Simington,you had a request to produce all the

files? --- Yes.

(p 633) That you had control over? --- Yes. . . .

Mr Simington, prior to coming to court today were you aware of

what generally this case was about? --- Generally, yes.

And generally what the cases in Sydney are about? --- Less

specifically. . . .

Mr Simington have you ever been in a situation where somebody

has expressed the view that all these Cambodians are economic

refugees to you? --- Oh yes.

And have you dispelled that view or adopted it? --- It is not

a question of dispelling, it is a question - it is a question

of professional judgment.

(p 634) And in the course of negotiations was it ever

suggested to you overseas that people were - that these people

were all economic refugees? --- Yes, it was.

And did you dispel that view? --- It wasn't and I didn't see

it as my job to dispel that view, to take on as it were and

contest a judgment by everyone I met.

HIS HONOUR: . . . what sort of people suggested that to you?

--- . . . Let me give you perhaps an illustrative list, your

Honour. UNHCR principally and UNHCR let me emphasise is the

United Nations agency responsible for the protection of

refugees. . . .

(p 639) Perhaps I will ask the question again. Was there

concern that by recognising these people as refugees that that

might have some ramifications for the peace process in

Cambodia? --- I would think that it could have been seen by

UNHCR as having implications for the conduct of the

repatriation of the 300,000-odd Cambodians on the

Thai/Cambodian border, yes.

Was there such a concern? --- If I can interpret your question

as to be asking me was there a view that a decision,

favourable decisions, on refugee status in Australia would be

seen to be against the interests of UNHCR and other countries

I think there is a presumption that that was probably true

from time to time.

[110]

"The policy, (the applicants) say, was to refuse applications

for refugee status by "boat people"; and this because of two

important objectives of the Australian government. The

objectives were, first, to discourage people from leaving

Cambodia in the hope of being accepted as refugees in

Australia and, secondly, to avoid undermining implementation

of the Paris peace agreements.

The evidence contains records of numerous conversations,

at a high level of government, concerning "boat people". Some

discussions were between people within the Australian

government; others were between representatives of the

Australian government and representatives of a foreign

government. The records were produced to counsel on a

confidential basis. They were tendered in evidence and

addressed in submissions. But people participated in the

discussions on the basis that they would be kept confidential.

I should not reveal their content unless this course is

essential. It is not. For present purposes it is enough to

say that the documents demonstrate concern within the

Australian government, at Ministerial level, about the

problems that would result from any significant increase in

the number of "refugees" attempting to reach Australia by

boat.

The documents reveal that many people failed to reach

Australia. At least one boat sank off the Cambodian coast,

with extensive loss of life. Some boats only got as far as

Malaysia, causing problems and expense for the Malaysian

government. Some boats reached Indonesia but were unfit to

proceed further. The Indonesian authorities took into custody

many "boat people", most of whom probably left Cambodia with

the intention of travelling to Australia. At one stage, it

seems, Indonesia held nearly 2,000 Cambodians in a camp at

Galang. The number of detainees strained accommodation at the

camp. The Australian government agreed to make a financial

contribution to its extension. This gesture was partly

humanitarian, but it also contained an element of self

interest. Australian officials calculated that, if conditions

at Galang became too bad, the Indonesian government might

become unwilling to take into custody "boat people" who came

to official notice; and that any such attitude would increase

the number who continued on to Australia and eventually became

a burden on the Australian government.

The documents also show concern about the cost of caring

for those who did reach Australia. During the period 1989-1991

the cost of providing facilities, and caring, for

detainees ran to several million dollars each year. There was

a strong and understandable wish, at a high level of

government, to abate the flow of arrivals.

In relation to the second motive for the alleged rule or

policy; there is no doubt that the Australian government has

always strongly supported the Paris agreements. I understand

that the agreements are based on principles first suggested by

Australia; although many others contributed to their final

terms. The Australian government has assisted to implement

the agreements, even to the point of sending Australian

personnel to join the United Nations peace keeping force.

There is no doubt whatever that the Australian government

would have been anxious to avoid undermining the Paris peace

agreements.

The argument that a policy of refusing refugee

applications stemmed from concern about the Paris agreements

was not well developed. The argument seems to be that

widespread approval of refugee applications would encourage

others to leave Cambodia, in the belief that they also would

be allowed to settle in Australia; continuing departures would

suggest that there were serious continuing problems in

Cambodia; and this would adversely affect the willingness of

the Cambodian factions, and their international supporters, to

implement the peace agreements.

Perhaps the first two steps in the argument may be

accepted. But it seems unrealistic to believe that the

Cambodian factions or their international supporters would be

influenced by the number of people putting to sea. These

parties must know the true position within the country. In

the light of that knowledge, they would make their own

assessment whether or not the implementation of the agreements

was in their interests. I cannot see why this assessment

would be influenced by the number of people leaving Cambodia.

Perhaps it does not matter whether or not there is a

logical link between the flow of "boat people"and the future

of the Paris peace agreements; there were other reasons for

the Australian government to discourage people from attempting

to reach Australia. But it is another question whether that

wish gave rise to a rule or policy of refusing refugee

applications."

[115]

(p 206) " THE TRAGEDY OF CAMBODIA

The horror of Cambodia's experience in the killing

fields of the Khmer Rouge has captured the attention, and

emotions, of the world more than almost any other contemporary

tragedy. Australia's efforts to help achieve a durable peace

for Cambodia have occupied more time and attention in our

diplomacy than any other single issue in recent years. . . .

the story of Australia's involvement in the Cambodian problem -

unfinished though it still is - is worth telling in some

detail.

The complex modern tragedy of Cambodia effectively began

with the deposition in 1970 of Prince Sihanouk . . .

culminated in the capture of Phnom Penh by the communist Khmer

Rouge in 1975.

There was then instituted, under the Democratic

Kampuchea (DK) government of the Khmer Rouge, and its leader

Pol Pot, a genocidal reign of terror exceeded probably only by

the Nazis. The country was cut off from the world, all

foreigners expelled, the cities and towns forcibly evacuated,

the whole population set to work in the fields, and the

systematic extermination ordered of professionals,

intellectuals, senior bureaucrats, 'Khmer bodies with

Vietnamese minds', and anyone else who might conceivably

challenge Khmer Rouge authority. News of the scale of the

horror was slow to filter out, but by 1979 it was becoming

clear that at least one (p 207) million people - perhaps

double that number: the truth will never finally be known -

had died. . . .

The Khmer Rouge's reign of terror came to an end, but an

endlessly protracted civil war recommenced. Recurring bloody

military engagements, guerrilla assaults and ambushes, the

displacement of large numbers of civilians, and the inability

of life generally to return to any kind of pre-1970 normality

all took their further toll of a people who have already

suffered more than most in the twentieth century. . . .

(p 208) . . . in February 1981 when, after two years of

growing domestic pressure, the Fraser Government broke ranks

with ASEAN and 'de-recognised' the ousted Khmer Rouge, or DK,

Government, whose cause ASEAN had been sponsoring in the

United Nations. This decision . . . reflected the very strong

domestic opinion in the Australian community that it was

immoral for Australia formally to recognise any claimant to

government associated with the odious Pol Pot regime. . . .

The Hawke Government's Indo-China policy thus focused

from the outset on exploring various options for a Cambodian

settlement. . . . Specific Australian initiatives designed to

help break the stalemate included the proposal for an

international war crimes tribunal to try Pol Pot and his

senior associates, . . . (p 209) The first significant

manifestation of the new approach was the Australian decision

in 1983 to withdraw from co-sponsorship, in favour merely of

support, of the annual ASEAN Cambodia resolution in the United

Nations General Assembly. That decision was taken on the

basis that, among other things, the resolution was too

one-sidedly critical of Vietnam, and did not sufficiently

acknowledge the enormity of the human rights desecration that

had occurred in Cambodia under Pol Pot. . . .

Something of a consensus was emerging at least on broad

principles - that there needed to be withdrawal of all

Vietnamese forces from Cambodia, matched by an effective

arrangement to prevent Pol Pot and his Khmer Rouge forces from

returning to power in Cambodia; . . . (p 210) The Paris

International Conference on Cambodia (PICC) was accordingly

convened, with joint Indonesian chairmanship, in Paris in

July-August 1989. This brought together all four Cambodian

factions, the six ASEAN countries, the Permanent Five Members

of the UN Security Council, Vietnam, Laos, Australia, Canada

and India as well as Zimbabwe (representing the Non-Aligned

Movement) and a representative of the UN Secretary-General.

In the event the Paris Conference failed, but not

without coming close to succeeding. . . .

Australia's United Nations Peace Plan It was to break this

impasse that the Australian peace proposal, announced in

outline by Gareth Evans in the Senate on 24 November 1989, was

put forward. The central concept of the Australian proposal

to reinvigorate the peace process was very simple. So as to

sidestep the power-sharing issue which had bedevilled the

Paris Conference, and constrain the role of the Khmer Rouge in

the transitional arrangements, it was proposed that the United

Nations be directly (p 211) involved in the civil

administration of Cambodia during the transitional period. .

. . In advocating a very substantially enhanced UN role in

the settlement, the Australian Government recognised that it

was being ambitious . . . conditions within Cambodia -

including the potentially fragile character of any ceasefire,

the difficulty of monitoring guerrilla forces, and the lack of

developed transport and communications infrastructure - would

mean that the overall UN operation would be much more

difficult than had been experienced in most other situations.

. . .

(p 212) it was appreciated that a long, gruelling effort

would be required to translate the Australian proposal into

reality.

In preparing its plan, Australia had to take account of

the prospect that the Khmer Rouge would be able to exploit the

process politically, militarily, or both - particularly in the

proposed transitional period under United Nations

administration - and would not in any event accept any final

outcome which did not leave them in control of the country.

Why not simply take the position that their past record of

atrocities entitled them to no consideration at all, . . . But

the critical point was that the Khmer Rouge could not be

effectively isolated and marginalised, and its military

influence nullified, so long as it continued to be supplied,

especially by China, with arms, money and diplomatic support.

. . .

It was also possible that the protracted process

involved in the plan's negotiation and implementation would be

exploited by the Khmer Rouge to make major military gains and

extend their political influence. . . intelligence assessments

available to the Australian government . . . indicated that

the Khmer Rouge was making steady long-term progress with the

same sort of guerrilla strategy which brought it to power in

1975 (combined with a softer 'hearts and minds' political

strategy), but that there was no prospect of an early

takeover. . . .

(p 213) Certainly in these circumstances, given no evidence

that the Khmer Rouge's stated abandonment of their previous

ideology and methods was anything more than tactical, there

could be no guarantee that they would not resume fighting

after the transitional period with weapons which had been

hidden from the UN monitoring teams. . . .

The Diplomatic Marathon . . . most of the participants in

the Paris Conference had picked up the proposal for an

enhanced United Nations role as a viable way around the

power-sharing impasse and the problem of the Khmer Rouge, and given

it varying degrees of public as well as private endorsement. .

. . (in) the December 1989 - January 1990 period . . . the

Australian 'idea' became a fully fledged Australian

'initiative' or 'plan', as the Foreign Minister and the

officials working with him constantly refined and developed

the detailed elements of the proposal and responded to

suggestions or criticisms from our various interlocutors. . . .

(p 215)

. . . there was produced in time for distribution at the

Jakarta Meeting - IMC (Informal Meeting on Cambodia - February

a 155-page series of Working Papers, incorporating the

technical mission's findings and covering in some detail all

the necessary elements of a comprehensive settlement.

The Papers were subsequently published as Cambodia: an

Australian Peace Proposal - the so-called (from the colour of

its binding) 'Red Book'. . . .

The Jakarta IMC came very close to reaching agreement on

a statement of principles . . . it just failed to do so,

consensus breaking down on the question of whether the agreed

record should make specific reference to 'the prevention of

recurrence of genocidal policies and practices'. . . .

Steady diplomatic progress was made throughout the rest

of 1990 in the refinement and development of the Australian

plan, with the Permanent Five and the Paris Conference

Co-Chairmen in close consultation with the (p 216) UN Secretariat

now playing the central role. .

Then, at a meeting in Jakarta on 9-10 September (1990),

hosted by Indonesia and France as Paris Conference

Co-Chairmen, the four Cambodian parties accepted this Permanent

Five framework in its entirety as a basis for settling the

Cambodian conflict, and agreed to establish a Supreme National

Council (SNC) - part of the original Australian proposal, and

called for in the framework - which would, among other things

occupy the Cambodian seat in the United Nations. . . .

(p 217)

Prince Sihanouk . . . convened a meeting of the SNC in

Pattaya, Thailand on 24-26 June (1991) (the first since its

notional formation the previous September); and at that

meeting brokered a series of agreements between the four

Cambodian parties which engendered a great deal of

international confidence that a final settlement might, after

all, be quite quickly attainable.

The key agreements were an immediate and unconditional

ceasefire of unlimited duration; acceptance that all Cambodian

parties would stop receiving external military assistance

forthwith; and - in relation to the SNC itself - that future

meetings would be chaired by Prince Sihanouk; . . . (p 218)

There remained many issues of detail - not least the question

of interim enforcement of the ceasefire and arms cessation

agreements, and resolution of the demobilisation question

which was continuing to worry the SOC. But there was general

agreement on a course of future meetings to address these

issue (sic) - involving, again, the Paris Conference

Co-Chairmen, the Permanent Five, and ultimately the reconvened

Paris Conference. At the time of writing (August 1991) it did

seem, at last, that the comprehensive settlement process had

moved to its decisive end-phase. Whatever the final outcome

proves to be - and there have been many false dawns before in

the Cambodian tragedy - Australia's contribution to the

settlement process has been major, and acknowledged as such by

the international community. . . . It represented not only a

sharp new turn in the implementation of Australia's Indo-China

policy but a major development in Australian diplomacy.

. . .

FROM BATTLEFIELD TO MARKETPLACE

(p 219)

The 'boat people' brought to the forefront two seemingly

different Australian national interests. One is the value of

Australia subscribing to an international system which ensures

that refugees are given asylum. This interest arises partly

from the axiom that everyone benefits from rules that apply to

everyone, but more particularly from the belief that Australia

benefits by practising what, as a liberal, democratic society,

it professes - such as the right of the individual to a

private life, protection of the weak against the strong, and

equality before the law. Refugees, who by definition are

victims of persecution, obviously offer a test of these

principles.

(p 220) The other Australian interest lies in restricting,

not encouraging, the flow of refugees. It is always likely

that Australia will be the target of refugee movements, as a

relatively prosperous society with a small population

occupying a large land mass. Our distance from the main

centres of refugee activity protected Australia in the past

from the involuntary flow of large numbers of refugees, who

normally move over the nearest border. It had been easier for

Australia to maintain the first kind of national interest when

we decided to bring large numbers of refugees from

war-stricken Europe, where they were carefully selected by trained

immigration officers thousands of miles from Australian

shores. The 'boat people' arrived without any such

preparation. Although controversy broke out over the question

of their status - whether they were actually refugees, in fear

of persecution, or merely seekers of good, or better, fortune -

many of them were indisputably refugees. That they had

undertaken a hazardous voyage, through seas subject to storms

and piracy, to some extent supported their claim. Whereas the

European refugees were brought to Australia as part of

deliberate immigration strategy, the Vietnamese were, from the

standpoint of Australian policy, less wanted. This applies

also to more recent 'boat people' from Cambodia.

The resolution of these two national interests is

achieved in principle by establishing that every country has

the right to determine who enters its territory. Through

experience of grappling with the Indo-China refugee issue at

first hand, Australia remains committed to its humanitarian

principles, but has realised that it must be more active in

managing the refugee problem. It has done this by

establishing an 'orderly departure program' with Vietnam;

persisting in a dialogue with other governments in South-East

Asia about restraining the flow of refugees southward to

Australia; impressing countries outside the region with the

need to resettle refugees at present held in camps of first

asylum; and, above all, by making an end to the conflict in

Cambodia - and the isolation of Vietnam - one of the top

priorities of Australian foreign policy. In that sense

Australia owed it not only to innocent victims of war and

conflict but also to ourselves to find a lasting solution to

the last remaining source of serious conflict in Indo-China. "

[155]

" APPLICANT'S NAME: MOK, Gek Buoy (sic)

File Number: 90/36901

STATEMENT OF REASONS FOR DECISION ON REFUGEE STATUS

FOLLOWING REVIEW BY THE REFUGEE STATUS REVIEW COMMITTEE

1. BACKGROUND

1.1 Personal particulars

1.2 Arrival details

1.3 Detention details

2. PROCESSING HISTORY

3. SUMMARY OF CLAIMS/SUBMISSIONS

4. ASSESSMENT

4.1 Definition

4.2 Race

4.3 Religion

4.4 Nationality

4.5 Social group

4.6 Political opinion

4.7 Cumulative grounds

5. DECISION

6. EVIDENCE

STATEMENT OF REASONS

I, MALCOLM GORDON PATERSON, at all material times a delegate

of the Minister of State for Immigration, Local Government and

Ethnic Affairs for the purpose of the determination of refugee

status make the following statement setting out my findings on

material questions of fact, referring to the evidence or other

material on which those findings are based and giving the

reasons for my decision of 3 November 1992 that GEK BOUY MOK,

(the Applicant), does not have the status of refugee within

the meaning of the Convention relating to the Status of

Refugees that was done at Geneva on 28 July 1951, (the

Convention), or the Protocol relating to the Status of

Refugees that was done at New York on 31 January 1967, (the

Protocol).

1. BACKGROUND

1.1 Personal particulars

Surname: MOK

Given names: Gek Buoy (sic)

Date of birth: 6 June 1959

Country of birth: Cambodia

Citizenship: Cambodian

Sex: Female

Marital status: Single

Composition/disposition of immediate family: Father

deceased. Mother, two brothers and two sisters in

Cambodia. One sister and one brother in Australia.

Country of former habitual residence: Cambodia

1.2 Arrival details

Date and place of arrival: 2 April 1990, Broome, WA

Documented/undocumented arrival: Undocumented

1.3 Detention details

In custody since 2 April 1990.

2. PROCESSING HISTORY

08/05/90 Application for refugee status received by

the Department (ff 3-36)

28/05/90 Applicant interviewed (f 63 - tapes)

26/02/92 Decision that Applicant was not a refugee

(ff 96-115)

24/03/92 Application for review of the decision

received by the Department (ff 116-118)

29/07/92 Consideration by Refugee Status Review

Committee (RSRC) (ff 148-151). Their

assessment was that she was not a refugee.

A copy of the RSRC assessment was sent to

the Applicant for comment.

24/09/92 Applicant's comments on RSRC assessment

received (ff 154-170)

3. SUMMARY OF CLAIMS/SUBMISSIONS

3.1 Following is a summary of claims raised in the primary

application:

(1) The Applicant and her family suffered hardship

during the Pol Pot period which included denial of

the right to practice her religion, separation of

family members, requirement to perform hard labour

while receiving insufficient food and the death of

her father due to exhaustion resulting from hard

labour. The Applicant was accused of being a CIA

informer when soldiers discovered her escaping her

mobile labour unit to visit her parents. As a

punishment for her attempted escape, she was sent

to an isolated farm where she was required to work

alone for six months.

(2) There is still fighting in Cambodia and the

Applicant fears a return of Pol Pot to power. The

Applicant's fears are not allayed by the

developments in Cambodia as there is still a

strong Khmer Rouge (KR) presence there.

(3) The Applicant and her family were faced with a

food shortage immediately after the Vietnamese

takeover. They stayed for a short time in a camp

on the Thai-Cambodian border before being forced

back into Cambodia at gun point along with

thousands of other refugees. In 1980, they went

to live in Phnom Penh where they found that most

of their relatives had died. During this time,

her brother continued to work as a dentist whilst

she took up sewing to earn an income.

(4) In 1985, the Applicant's family were classified as

'351' denoting Chinese ethnicity. As a result,

their belongings were confiscated by armed

soldiers. They were subjected to discrimination

which affected the Applicant's education, her job

prospects, her ability to openly practice her

religion and cultural practices. The Applicant

and her family were also discriminated against by

the general population. Commenting on the draft

primary assessment of the Applicant's claims, her

legal representative stated that liberalisations

referred to by the primary case officer are not

sufficiently substantial to negate the fears held

by the Applicant in this regard.

(5) Despite the prohibition of religious practices,

the Applicant and her family continued to practice

their religion secretly at home. On one occasion,

the police raided their home while they were

praying, destroyed their shrine and threatened

them with imprisonment and flogging if they were

caught again.

(6) The police and a section leader came to her family

home two or three times in 1989. Her sister spoke

with them while the Applicant ran away. Her

sister was very frightened by them. The Applicant

does not know what they wanted.

. . .

(9) Because of the Applicant's illegal departure, she

would be considered as a person who had betrayed

her country and she fears imprisonment on return

to Cambodia. Her relatives would also be

condemned. She had seen people depart Cambodia

but had never seen them return. She had heard

that punishment for attempted illegal departure is

imprisonment.

(10) Commenting on the draft primary assessment of the

Applicant's claims, her legal representative

stated that the case officer has given no

consideration to the objective situation at the

time the Applicant submitted her application. It

is argued that developments which have taken place

since that date and which have been taken into

account by the case officer do not represent a

change which is either stable or ongoing.

(11) The Applicant believes that the 57 Cambodians who

returned from Galang camp in Indonesia would not

have returned unless they had someone inside the

Government to depend on. The Applicant's legal

representative makes a distinction between the 57

voluntary returnees and the hundreds of thousands

of Cambodians who continue to be unable or

unwilling to return to Cambodia.

Additional claims in the review application can be

summarised as follows:

(12) The Applicant's legal representative re-iterates

that refugee status should be determined upon the

facts as they exist when the Applicant seeks

recognition as a refugee and that even a 10%

chance of persecution on return to the Applicant's

country of nationality would constitute a "real

chance" of persecution (Chan vs. Minister for

Immigration and Ethnic Affairs).

(13) Return of the KR does not mean a return by the KR

to complete and absolute power but it means a

situation where the KR are able to continue the

civil war in Cambodia through violence and

persecution. The Applicant's fear in this regard

is supported by objective evidence in relation to

the destructive force of the KR. As an equal

partner in the four member SNC, the KR would

secure its own position within Phnom Pehn, remain

armed and continue to receive endorsement by the

Chinese leadership.

(14) The Applicant's legal representative refers to

articles by Dr Dennis Shoesmith and Stephen Heder

and submits that the leadership and ideology of

the KR remain unchanged. Commenting on the

ceasefire violations by the KR, it is submitted

that they are a set back to the peace process.

. . .

(19) The disproportionate punishment that the Applicant

would be subjected to for her illegal departure,

would amount to persecution in Convention terms.

(20) In view of the volatile situation in Cambodia,

returnees to Cambodia are not yet safe from future

persecution. They will only remain unharmed while

the international spotlight is focussed on

Cambodia. When the numbers increase, it will not

be easy to monitor their safety.

(21) Dr Shoesmith has stated that the relaxation of

some discriminatory regulations in relation to

Chinese Cambodians does not mean that the Chinese

Cambodians are not at risk of persecution by local

party leaders and agitators in the lead up to

elections. Dr Shoesmith also points out that the

Chinese Cambodians outside the capital city still

face particular risks from the Khmer Rouge.

(22) The Applicant's legal representative refers to

Paragraph 201 of the UN Convention Handbook and

requests that the "cumulative effect" of the

Applicant's experiences be taken into account.

Additional material in the applicant's comments on the

RSRC recommendations can be summarised as follows:

(23) The UNHCR Handbook stipulates at Paragraph 37,

that the subjective element should be accorded

primacy and that the determination of refugee

status "primarily requires an evaluation of the

Applicant's statements rather than a judgement on

a situation prevailing in his country of origin".

The RSRC has paid insufficient attention to the

merits of the Applicant's individual claim and has

instead, been acting on a policy to reject the

current applicants.

. . .

(25) The fact that millions of Cambodians had

experiences similar to those of the Applicant

during the Pol Pot period, does not dilute the

experiences of the Applicant. Any fear of the

return of the KR is well-founded in view of its

past practices and in view of the power it now

wields in Cambodia.

(26) With regard to the Applicant's 351 classification,

the Committee has not given individual attention

to the specific matters mentioned by her in her

application. The Applicant's experiences in this

regard, when considered cumulatively, justify a

claim to a well-founded fear of persecution on

grounds of race, nationality and membership of a

particular social group.

(27) The RSRC has ignored Prime Minister Hun Sen's

comment in Sydney on 27 October 1991 that he did

not consider ethnic Chinese to be Cambodians.

Given Hun Sen's status in Cambodia and the

likelihood of Hun Sen returning to power after

elections, there is a real chance that his views

will be reflected in policy resulting in ethnic

Chinese being victims of discriminatory measures.

(28) It is inappropriate to rely solely on the

provisions of the 'SNC Resolution, April 1992' to

guarantee the safety of returnees given that there

is evidence to contradict it. A UN spokesman

admitted as recently as 17 April 1992, that

Cambodian refugees returning home under UN

protection were being questioned by the Government

police regarding their political affiliations.

(29) The Applicant's legal representative questions

UNHCR's capacity to monitor the fate of those who

have returned, given the high numbers. The RSRC

has not cited the source of its information that

'those who voluntarily returned from Australia to

Cambodia have settled well without experiencing

any major difficulty' and the Applicant's legal

representative also questions the strength of this

assertion and refuses to accept the conclusion

that it is safe for the Applicant to return to

Cambodia. It is further submitted that no part of

Cambodia can be judged as being safe or stable.

4. ASSESSMENT

4.1 Convention definition

4.1.1 As relevant to this case, a refugee is defined in the

Convention Relating to the Status of Refugees (1951) as

amended by the Protocol Relating to the Status of

Refugees (1967) as a person who

" . . . owing to well-founded fear of being persecuted

for reasons of race, religion, nationality, membership

of a particular social group or political opinion, is

outside the country of his nationality and is unable or,

owing to such fear, is unwilling to avail himself of the

protection of that country . . ."

4.1.2 I accepted that the Applicant does not wish to avail

herself of the protection of Cambodia. However, I had

to assess whether this is because the Applicant has, in

relation to a Convention reason, a well-founded fear of

persecution.

4.1.3 My assessment of the applicant's claims and submissions

against the Convention definition, taking each

"Convention reason" in turn, follows. Numbers in

brackets refer to the claims as summarised in Section 3

above.

4.2 Race

. Ethnic group

4.2.1 The Applicant's claims (4), (21), (26) and (27) relate

to discrimination suffered as a result of Chinese

ethnicity. I considered the description in the

Shoesmith Report (dated 17 February 1992) of the effect

of "351" ethnic Chinese classification and the unsourced

statements regarding "351" submitted by the Applicant's

representative. However, I gave greater weight to the

more recent evidence in the report, dated 22 June 1992

from the Department of Foreign Affairs and Trade (DFAT),

which advises that although discrimination against the

Chinese did exist in the early years of Ordinance 351,

there is evidence that it is no longer being enforced

and also that there is tolerance of Chinese cultural

activities within the community. This is particularly

so in the commercial sector. I gave the DFAT material

greater weight as it is more recent and collected by

impartial and professional officers based in Cambodia.

4.2.2 In considering the Applicant's claims regarding

discrimination in employment and education I accepted

that in 1980 the Applicant had been able to establish

herself as a self employed seamstress to earn an income.

Even after the classification of the Applicant as "351"

in 1985 she was still able to attend a course in dress

making in 1987 and continue with her business up until

the time she left for Australia in 1990. I also

considered that the applicant has claimed that she did

not receive any schooling past 1975. This is consistent

with the coming to power of the KR and the cessation of

education for a great many Cambodians. By the time the

KR were removed from power the Applicant was past normal

school age and like many Cambodians was not able to

complete her education. There is no evidence to suggest

that she was denied education prior to 1973 for

Convention related reasons. Even if the limitations on

the Applicant's education were based on her ethnicity, I

found that this adverse treatment was insufficient to

amount to persecution as it did not result in her being

denied the right to employment.

4.2.3 I did not consider Dr Shoesmith's statement that Chinese

Cambodians living outside the capital city still face

particular risks from the KR (claim (21)), as relevant

to the Applicant. The Applicant would be able to return

to Phnom Penh, where the KR, although present, are not

active, and where she resided for 11 years prior to her

departure.

4.2.4 Fears expressed in claim (27) are based on the

speculation that Hun Sen would come to power after the

election and that he would adopt discriminatory policies

towards Chinese Cambodians as per his comment in Sydney

last year. I did not give weight to this claim or Prime

Minister Hun Sen's comment as it is based on speculation

that he will come to power after the election and that

he intends adopting discriminatory policies towards

Chinese Cambodians. There is evidence, see 4.3.2 below,

that the Hun Sen Government has, in fact, taken steps to

liberalise policies in relation to Chinese Cambodians

for example in relation to religion.

4.2.5 I considered the applicant's claim that due to her

Chinese ethnicity she suffered discrimination by the

general population. As the applicant does not provide

details regarding the nature of this discrimination, I

am unable to assess whether or not it amounts to

persecution.

. . .

4.3 Religion

4.3.1 The Applicant claimed she was forbidden to perform

certain Chinese religious practices such as the burning

of incense, maintaining a shrine in the family home and

worshipping ancestors. Claim (5) outlines the

difficulties experienced by the Applicant as a result of

practicing her religion at home. I did not consider

these claimed general restrictions to amount to a denial

of the Applicant's right to practice her religion but

rather a limitation of that right. While the incident

where the house was raided by the authorities was no

doubt distressing to the Applicant and her family, I

considered that as it was a one off incident, which was

apparently not followed up by the authorities, it does

not amount to persecution.

4.3.2 Advice from both DFAT and Dennis Shoesmith is that steps

have been taken by the Phnom Penh authorities to ease

long-standing restrictions on the practice of religion.

This includes the fact that Chinese temples and the

freedom to practice Chinese Buddhist activities,

including the Chinese New Year, are in evidence and are

not apparently being stopped by the authorities. In

view of these recent developments, I do not consider the

Applicant's fear in this regard to be objectively

well-founded.

4.4 Nationality

. Ethnic group

4.4.1 I have assessed the claimed discrimination owing to the

Applicant's Chinese ethnicity under the Convention

reason of Race in Section 4.2.

. . .

4.6 Political opinion

. experiences during the Pol Pot period and the fear of

return of the KR

4.6.1 The applicant's claims regarding adverse treatment of

herself and her family by the KR and her fear of return

of the KR (claims (1), (2), (13), (14) and (25)) are

based on incidents that occurred several years ago. I

accepted that the KR currently have a presence in Phnom

Penh, however I assessed that that presence was not an

active presence such as to give rise to Convention

concerns. There is no evidence to support a proposition

that the KR have persecuted anyone in Phnom Penh or that

they would persecute the applicant in Phnom Penh. DFAT

advise, (in advice of 22 June 1992), that Khmer Rouge

activity is limited to certain geographical areas, most

notably the northern and western areas of the country.

On 19 June 1992, DFAT advised that Daniel Conway (UNHCR

Representative in Thailand) made it clear while briefing

Australian officials, that nobody would be repatriated

to Khmer Rouge areas, even if they requested this, as

long as those areas were not open to UNHCR monitoring.

When the applicant is returned to Cambodia, she will be

sent to an area where there is no Khmer Rouge activity.

On that basis, her fear of persecution by the Khmer

Rouge is not well-founded.

. treatment by Vietnamese authorities after Pol Pot period

4.6.2 I accepted the difficulties that the Applicant and her

family experienced after the Vietnamese takeover in

1978, as outlined in claim (3). They are consistent

with experiences of thousands of other persons who

returned to Cambodia from camps after the Vietnamese

takeover. This situation did not continue as is evident

from the Applicant's submission that her family were

engaged in small trade in Phnom Penh since 1980, that

she was self employed as a dress maker and there is no

further mention of difficulties with the Vietnamese

authorities. Therefore, I did not consider the adverse

treatment suffered establishes a well founded fear of

persecution on return to Cambodia.

. consequences of illegal departure and safety of

returnees

4.6.3 The Applicant's claims (9) and (19) outline feared

adverse treatment on the basis of her illegal departure

while claims (11), (20), (28) and (29) outline the

Applicant's fears concerning the safety of returnees. I

accepted the possibility that the Cambodian authorities

may view an illegal departure as an expression of

political opinion and that there probably were instances

of persons being prosecuted and possibly persecuted for

illegal departure prior to the Paris Peace Agreement.

However, the only recent evidence relating to the

treatment of returnees that I had before me dealt with

voluntary returnees, including those from Australia who

had also left Cambodia illegally. These people are

being monitored by the Australian authorities in

Cambodia and there is no evidence that they have

suffered any persecution or discrimination since their

return.

4.6.4 Despite concerns expressed by the applicant, UNHCR

advises in a press release on 28 August 1992 that 100

000 Cambodians have been repatriated from border camps

and that there have been no reports of human rights

violations with respect to the returnees. In accordance

with Annex 4, Part II, Clause 4 of the Paris Agreement,

which provides for the rights and freedoms of Cambodian

refugees and displaced persons, the SNC Resolution,

April 1992, confirms that all Cambodian refugees and

displaced persons who return home under the arrangements

foreseen in the Paris Agreement "will not be subject to

persecution, prosecution, punitive or discriminative

measures on account of their departure from Cambodia, or

their status as refugees or displaced persons, or,

without prejudice to relevant provisions of

international law, their political affiliation or

activities subject to their departure".

4.6.5 It is a principle of the repatriation provisions of the

comprehensive settlement that nobody will be forced to

return to areas which are judged unsafe or unstable. I

agreed, subject to my findings in paragraph 4.6.1 above,

with the RSRC that by returning to Phnom Penh, which is

the Applicant's former area of residence, she will not

be returning to an unsafe or unstable area. On the

basis of the information before me, I find that the

applicant's fear of persecution upon return is not

well-founded.

. visit by police and a Section leader

4.6.6 The Applicant does not know the purpose of the visits

mentioned in claim (6). Although the Applicant may have

been frightened by the visits at the time, neither the

Applicant nor her sister, who spoke with the

authorities, experienced any further difficulties as a

result of these visits which occurred two or three times

in 1989. I do not accept that these visits contribute

to the Applicant's claimed fear of persecution for a

Convention based reason.

. . .

4.7 Cumulative grounds

4.7.1 I considered the Applicant's claims regarding race,

religion and political opinion cumulatively. I assess

that the discrimination and harassment suffered by the

Applicant do not constitute persecution in Convention

terms.

5 DECISION

I determined that the applicant is not a refugee.

6 EVIDENCE

In making my assessment, I had before me the following

material:

. Departmental file 90/36901, consisting of folios

1-172.

. DFAT report dated 22 June 1992 on the situation in

Cambodia.

. United States State Department Country Reports on

Human Rights Practices (1991) pp 798 - 808.

. Mission Report Voluntary Repatriation Port Hedland

- Fordham.

. Other submissions lodged on behalf of the

Applicant.

. Departmental files 92/52429 and 92/52587

containing submissions lodged on behalf of the

Applicant.

(signed)

Malcolm Paterson

Delegate of the Minister for Immigration

Local Government and Ethnic Affairs

12 November 1992"

[158]

"The following assessment by the Department of Foreign Affairs

and Trade (DFAT) of the situation in Cambodia, updated to 20

June 1992, concentrates on the areas of political stability,

security and human rights, as being the areas most relevant to

evaluating the risks which would be faced by non-voluntary

Cambodian returnees from Australia at this time.

In summary, DFAT holds a cautious but basically

optimistic view on the prospects for stability and respect for

human rights in Cambodia, both in the coming 12-18 months

(during the period of the UN administration) and in the longer

term, following the democratic elections to be organised and

supervised by the United Nations Transitional Authority in

Cambodia (UNTAC) in 1993. This view is based on the

comprehensive nature of the settlement itself, including its

complex system of safeguards, the continuing support of the

international community as a whole, the fact that none of the

parties involved in the conflict, despite some serious

strains, have abandoned the settlement, and on the progress

being made, notwithstanding a number of difficulties and

delays, in the implementation of its provisions.

It is important to note, however, that the situation in

Cambodia remains extremely fluid. Given the nature of

Cambodian politics, the number of players involved and the

unprecedented scale of the United Nations role, this must be

expected. The most recent difficulty has been the Khmer

Rouge's refusal to comply with requirements laid down by UNTAC

for the implementation of Phase II of peace-keeping operations

(see below, pp17ff). This problem is being discussed at a

Ministerial Conference on Cambodia in Tokyo on 22 June. At

the time of completion of this report, the results of this

potentially important meeting are not known. Should this

problem remain unresolved over the next few weeks, it would

clearly have serious implications for the settlement as a

whole; however, the Khmer Rouge are now participating in talks

in Tokyo on the impasse. . . . How easily the current

problem may be solved should become clearer following the

current talks in Tokyo. . . .

(p 17.9) On 9 May 1992 representatives of the four factional

armies had given an undertaking to the UNTAC Military

Commander (Sanderson) to comply with the preconditions for the

beginning of Phase II of UNTAC military operations. These

preconditions included total UNTAC access to the areas under

their control, formal ceasefire arrangements, cantonment

arrangements and marking of minefields. . . .

(p 18) Unfortunately the Khmer Rouge subsequently failed to

meet a number of requirements for all the factions laid down

by Mr Akashi on 26 May. The most important of these

requirements concerned allowing UNTAC full and unrestricted

movement in the areas under Khmer Rouge control.

Nevertheless, Phase II began on schedule on 13 June, albeit

without the cooperation of the Khmer Rouge, . . .

(p 19) b) The Position of the Khmer Rouge

By their signature of the Paris Accords, the Khmer Rouge

have committed themselves to cantonment, disarmament and

eventual demobilisation of their armed forces under UN

supervision. . . .

Throughout the implementation process, through their part in

the ceasefire violations, their slowness in complying with

military arrangements and in providing access to areas under

their control, the Khmer Rouge have demonstrated their

determination to deny any advantage to their main adversary,

the SOC. Their failure to meet UNTAC requirements and

commence Phase II with the other factions is of particular

concern. . . .

(p 20) While the Khmer Rouge have dragged their feet in the

initial implementation phase of the settlement, their pattern

of behaviour has been to push their point as far as possible

but to draw back before endangering the settlement as a whole.

The balance of informed opinion continues to support the view

that the present impasse is yet another example of such

behaviour, albeit more serious and potentially destabilising

than previous instances. It is noteworthy that the Khmer

Rouge leadership has continued to assert its support for the

settlement, and senior leaders are participating in

discussions in Tokyo with the Supreme National Council (SNC),

and other interlocutors there for the Ministerial Conference

on the Rehabilitation and Reconstruction of Cambodia (21-22

June). Khmer Rouge representatives continue to participate in

the work of the SNC and the Mixed Military Working Group. . .

. It should become clearer in the very near future whether or

not recent events are (sic) reflect a change in the Khmer

Rouge position. . . .

(p 22) The International Committee of the Red Cross (ICRC)

which, under the terms of the Paris Accords, has the

responsibility to supervise the release of prisoners of war

and civilian detainees . . . is satisfied that the

non-communist factions are holding no prisoners. There have,

however, been continuing problems with access to Khmer

Rouge-held territories and it is not known how many, if any,

prisoners are being held there. On 9 May the Khmer Rouge

agreed, as part of the pre-conditions for the commencement of

the formal, (p 23) UNTAC supervised ceasefire, that it would

grant UNTAC complete access to the areas under their control.

However, to date this has not been forthcoming. "

[161]

"CAMBODIA- FURTHER INFORMATION REQUIRED FROM DFAT

. Update information - situation has changed since June

1992. In particular, location and nature of KR and Hun

Sen activity - have they expanded their sphere of

operation?

. Repatriation of involuntary returnees:

- what is the law?

- what is the administrative practice?

- where is the evidence on specific known cases

outside of the UN Repatriation Programme?

- has there been any monitoring by UNHCR - where is

the evidence?

- claims made by applicants have not been pursued by

DORS/DFAT (ie need further investigation to

determine whether the claims have probative value)

- what is in the Fordham paper? has it been used?

if it is favourable, why not? has it been put to

the applicants for comment?

. Some applicants claim that they fear persecution by Hun

Sen but their activities - in terms of adverse treatment

of persons - have not been adequately documented.

. Adverse treatment on the basis of Chinese ethnicity.

Problems with existing information.

- limited sources (only one?);

- source (Association of Chinese Nationals in

Cambodia) appears to be an officially tolerated

group;

- source arguably has a vested interest in

representing Cambodia as not unsafe (ie a good

place to come and spend money).

. Some inferences by DFAT are open to question, eg:

- at p 24, DFAT says that "Chinese temples and

freedom of worship are in evidence" but that

evidence is only of temples in two cities;

- attached cable at para 4, DFAT says that the

Chinese face reverse discrimination in relation to

conscription, but the only evidence is that ACNC

replied with "mirth and a definite no" to the

suggestion of discrimination in this regard.

. We need DFAT to identify an expert witness:

- who has a detailed knowledge of both the general

situation and specific case examples;

- to give an authoritative report on which decisions

can be based;

- who would be willing, able and suitable to appear

for the Department in Court proceedings.

Was Eleanor Higgs asked to write a paper?"

[195]

"(t.2285) HIS HONOUR: . . . the problem of the Khmer Rouge's

refusal to comply with requirements laid down by UNTAC for the

implementation of phase 2. Now, that problem I rather gather,

but correct me if I am wrong, continued from the date of this

report . . . at least until some time relevantly after your

decision on 3 November? --- Yes, your Honour. . . .

(t.2286) And the day . . . on which the report was dated a

conference at least partly called to consider that very

question of Khmer Rouge problem attitude that in fact was

resolved but resolved the wrong way, is that right? --- Yes,

your Honour, that is why I made the reference to the practical

reality of the situation. ...

(The DFAT report) says how (easily) the current problem may be

solved should become clearer following the current talks in

Tokyo. Well, would it be fair to say that the question of how

(easily) it could be solved became much clearer after the

talks in Tokyo and the answer was it was not going to be

solved? --- That is right, the problem continued.

The problem continued . . . (t.2287) roughly until the time of

your decision? --- Yes, your Honour.

Was that known to you? --- Yes, your Honour, as we have

discussed there were the problems with Khmer Rouge in various

parts of Cambodia.

But see do you say anywhere in your decision that you took

into account the fact that the position had markedly changed

for the worst in the sense of a non-resolution of what DFAT

called a problem, . . . and it was still continuing when you

decided the question whether this woman had objective reasons

for fearing return to Cambodia? --- No, your Honour, that is

what I was saying earlier about the practical reality of the

situation. The practical reality of the situation was the

peace process had stalled but the problem was still in

existence. The problem existed when the DFAT report was

written, it was still in existence in November so the peace

process was largely irrelevant for that particular purpose if

you understand the logic of that.

Well I do not quite follow why you say it is irrelevant, I am

not quite sure what you (are) saying about practical reality

if you explain that? --- Well, the practical reality was there

was a problem with the Khmer Rouge in - on 22 June, 1992, when

this report was written.

Yes? --- All that happened was that the peace process actually

stalled. The practical problem of the Khmer Rouge maintaining

control over parts of Cambodia and not disarming and cantoning

continued and that is the distinction I am drawing your

Honour.

Well, (DFAT said) "should this problem remain unresolved over

the next few weeks, it would clearly have serious implications

for the settlement as a whole". Did you take that into

account? --- Not that I can remember, your Honour. "

[197]

"(t.2275) Mr Paterson, is the position that if I take you to

a specific paragraph, the reality is I am going to get an

answer, you do not remember, or do I need - - - ? --- Yes,

that's correct. I mean, I just do not recall which bits I

specifically relied on.

Did you ever seek to check the accuracy of any of this

material? --- No. ...

(t.2278) And did not the Khmer Rouge abandon the settlement?

--- Well, they - they were as we have already discussed, they

stalled on certain parts, yes.

. . . what influence or impact did that have on you, the Tokyo

meeting? --- None that I can remember.

But does not that change perhaps one of the major basis for

the DFAT report's optimism? --- Not in any great way, because

the whole peace, the whole - DFAT was not based wholly and

solely on the peace process. The peace process is only part

of the process. . . .

(t.2282) HIS HONOUR: . . . Take your time to look at it, Mr

Paterson, I want your evidence on it, do you understand? Do

you see the passage to which counsel has just referred, the

most - - - ? --- Well, I am reading the whole of the third

paragraph on that page, your Honour, yes.

Well, take your time and read it, yes? --- Yes, I've read the

paragraph.

What is the problem referred to in the last line which says,

"Should this problem remain unresolved"; what is that problem?

--- Well, to the best of my recollection, your Honour, what

was happening was there was - the process was stalling up

until that time, and at Tokyo - and I say, I am only reaching

back into memory here - the actual - there was a sort of a -

agreed stalling, if you understand the difference, at that

point in time. Till Tokyo there were problems and then there

was - it was - I think the Khmer Rouge at that meeting

actually said they would not participate. And that is my -

best of my recollection, but it is very vague.

What, in the peace process? --- In the peace - at that point

in time, yes.

Well then, it goes on, "If it remains unresolved" - now, I

take it it remained unresolved immediately after the Tokyo

conference on what you have just said? --- To the best of my

recollection, your Honour, and I am not a foreign affairs

expert, so - - -

Well, the report says, "If that remains unresolved in the next

few weeks it would clearly have serious implications for the

settlement of the whole"? --- Yes.

Did that sort of statement have any effect upon your approach

to the question of whether there was objectively a danger of

persecution of Ms Mok should she be returned? --- Did that

particular reference?

Yes? --- Not that I can remember, your Honour.

Well, that reference coupled with the information which you

say you got probably just through the press, that the Khmer

Rouge had in fact pulled out of the peace process; did that

have any effect upon your approach to the question of what was

likely to happen to her if she was returned to Cambodia? ---

Well, not that I can expressly remember now, your Honour, but

obviously it did because of the way the final decision came

out.

(t.2283) What have you got in mind there? --- Well, just the

way that - as I have said earlier - taking it down to a

personal level to this individual applicant it obviously

didn't have any effect on - sorry - I obviously assessed the

woman not to be a refugee on an individual fear of persecution

taking into account this material. Do you follow what I am

saying or have I made myself more confusing?

Well, it is just that you say in your statement of reasons

that you had regard to, and preferred, this report which we

are just looking at? --- Yes.

This report is written on 22 June and there happened to be a

meeting in Tokyo (later) that very day, and the report itself

talked about that as being a potentially important meeting? ---

Yes.

As I understand what you are saying is that you found out from

some source - you knew that the meeting had resulted in the

Khmer Rouge saying, well, we are out of this peace plan, or

words to that effect? --- There was some - yes, obvious, yes -

- - . . . implementation of phase 2 of the peace-keeping

operations; is that right? --- Yes, your Honour."

[211]

"(MR ROSE:) If you apply the Chan test, do you not then, to

some extent, have to speculate as to what is going to occur in

the future? --- You have to assess the situation as you see

it.

But do not - - -? --- That's what the decision making process

involves.

But do not you have to assess the situation as you believe it

may pertain in the future? --- Well obviously because the

person may be returned tomorrow, which therefore is the

future.

When you came to you assessing task, did you look at what, in

terms of Ms Mok's complaint that the future position in

Cambodia would be. That is, if she was returned on 4

November, I appreciate you say well, that is the future from

the day you made your decision the third, but what about two

months hence, did you look to see what the position was? ---

Well, it wasn't relevant to my decision when she was removed.

But how can you consider whether there is a real chance that

somebody would be persecuted if you are not looking at the

position a bit further down the track. You are not looking

into the future as best you can? --- Well by the same question

I could be saying the person could be persecuted in 50 years

time. Where do you (draw) the line?

I just want to understand how you applied the Chan test. Was

it your understanding the Chan test required you to decide if

a person had a genuine fear founded on a real change that he

or she would be persecuted for a stipulated reason? --- Yes.

Would be persecuted means that you have to look into the

future, does it not? Not that they will definitely be

persecuted, it is would be? --- Would be, yes.

Is not that looking at the future? --- As I said, the future

can be the next day.

It could be the next month too, cannot it? --- It could be

fifty years hence.

(t.2294) All right. Now, it has got to be a well founded

fear and a real chance has it not? --- Yes.

The one thing we perhaps could not say is. look at what

Cambodia will be like in 50 years time, could we? --- That's

right.

You would say that is beyond the pale of reasonableness? ---

Yes.

But we could look on the known facts objectively as to the

possible scenarios that could have developed in Cambodia in

the period leading up to the May election and the period of a

government coming into power. They were things you could have

looked at were not they? --- I could have looked at them.

You could have gone, for example, to DFAT and said, well what

is your best scenario, could you not? --- I could have.

You could have gone to Mr Simington who had been going back

and forth to Cambodia and said, "What is your expectation"? --

- I could have.

But you did not do any of that, did you? --- No." (transcript

2293-2294 - emphasis added)

[235]

" It is one thing to say that an applicant must have a

well-founded fear of being persecuted at the time his

application is considered. It is quite another thing to say,

as was said by the Full Court of the Federal Court, that, in a

case involving changed circumstances, the question whether

such fear is well-founded is to be answered by reference to

the situation prevailing, when the application is considered.

Of course, and I do not understand this to be excluded by the

Federal Court's formulation, a political situation can only be

properly evaluated in the context of its supporting political

structures. Those structures are not necessarily revealed by

a consideration of current political activities and policies.

And where, as here, the claim is to an extent based on

political structures, something more is required than a mere

evaluation of current political activities and policies. But

even allowing for these considerations, I do not think it

correct to say that the question whether a fear is

well-founded is to be answered by reference to the situation at the

time of the determination and in isolation from the past

experiences of the applicant.

(at 415:) Although the definition requires that there be

"well-founded fear" at the time of determination it would be

to ignore the nature of fear and to ignore ordinary human

experience to evaluate a fear as well-founded or otherwise

without due regard being had to the applicant's own past

experiences.

If an applicant relies on his past experiences it is, in

my view, incumbent on a decision-maker to evaluate whether

those experiences produced a well-founded fear of being

persecuted. If they did, then a continuing fear ought to be

accepted as well founded unless it is at least possible to say

that the fear of a reasonable person in the position of the

claimant would be allayed by knowledge of subsequent changes

in the country of nationality. To require more of an

applicant for refugee status would, I think, be at odds with

the humanitarian purpose of the Convention and at odds with

generally accepted views as to its application to persons who

have suffered persecution:"

[252]

"The facts concerning an applicant's departure from his/her

country of nationality must certainly be considered. What I

am holding, contrary to the submission made on behalf of the

applicant, is that it is also necessary to consider events

that have occurred since the applicant departed the country of

nationality and, indeed, since the applicant lodged his/her

application for refugee status, and which bear upon the

question whether the fear is well-founded at the date of

determination.

Each of the delegates approached the application of Dr

Lek and the group members in this way. In each case they

looked at the claims made by the applicant for refugee status

concerning his/her experiences in Cambodia. In each case they

accepted that the applicant had a fear of persecution on one

or more Convention grounds. They then went on to consider

whether that fear was well-founded. In most cases the

delegates did not make a specific finding on the issue, as at

the date of the applicants' departure from Cambodia. Rather,

they approached the matter, in effect, by assuming that the

fear was well-founded at that time and posing the question

whether supervening events meant that the applicants'

continuing fear remained well-founded. They answered that

question by pointing to information (notably the report of the

Department of Foreign Affairs and Trade ("DFAT") dated 22 June

regarding changes within Cambodia since March 1990. It

seems to me that this course follows the prescription laid

down in Chan. It separates out two logically distinct

questions: whether the applicant had a continuing subjective

fear of persecution on a Convention ground at the date of

determination and whether that fear was objectively

well-founded. It addressed the second question by taking as the

starting point the position as at the date of departure and

asking whether the available evidence establishes that the

position has since changed, so that the fear is no longer

well-founded even though subjectively continuing. In regard

to the latter inquiry, and because of the practical problems

noted by the High Court, there is in substance an onus of

proof on those who assert that relevant changes have occurred.

In each of the subject cases, the delegates in effect

determined that this onus was discharged because of the

official material placed before them. I see no fault in the

delegates' methodology." (emphasis added)

[259]

p 8 "(iii) A letter from Amnesty International of 15 January

1987 to the Chairman of the DORS Committee was not considered

by the decision-maker invoking ss 5(1)(3) and 5(2)(b) of the

Act.

p 10 (iii) The letter of 15 January 1987 was directed to the

Chairman of the DORS Committee so that one would incline to

the view that the Committee received it and considered it in

the absence of any evidence to the contrary. In addition, the

evidence is that the question of the possible refugee status

of Heer and Mrs Heer was only reconsidered in February 1987

because of the receipt of the letters from Amnesty

International. The respondent Minister in his reasons dated 6

April 1987 for the decision of 3 March 1987 not to recognise

Heer as a refugee mentions the receipt by the DORS Committee

of the letter from Amnesty International but does not say that

the Minister himself read and considered that letter, rather

the reverse, but it is clear that the DORS Committee

considered it. I am prepared to find that the matters raised

in the letter were considered by the DORS Committee, there

being no evidence to the contrary and there being evidence in

the minutes of the meeting called to consider the letter and

that relating to Mrs Heer that the matters were considered.

The respondent Minister was, in my view, entitled to act on

the report of the DORS Committee, a Committee set up for the

very purpose of investigating questions of refugee status and

advising the Minister thereon. If the Minister were obliged

to study all the material before the Committee there would not

be much point in having a Committee. The Minister was

entitled to act upon the report of the Committee and adopt its

recommendations: see Sean Investments Pty Ltd v MacKellar

[1981] FCA 191; (1981) 38 ALR 363 at 370 per Deane J. The Minister in his

statement of reasons mentioned above specifically refers to

having had before him when making the decision as to refugee

status the minutes of the meeting of the DORS Committee. This

ground also fails." (emphasis added)

At a glance

Court

Decision date

Before

Source

Judgment (302 paragraphs)

Mok Gek Bouy v the Minister of Immigration, Local Government and Ethnic Affairs and Malcolm Paterson [1993] FCA 545; (1993) 47 FCR 1 (15 November 1993)

Parties

Legislation Cited (3)

Cases Cited (16)