CATCHWORDS

IMMIGRATION - Refugees - Application for refugee status by Cambodian national - Refusal by Minister's delegate - Well-founded fear of persecution - "Real chance" test - Whether applied by delegate - Whether failure to take into account relevant considerations - Whether refusal unreasonable.

Migration Act 1958, s 22AA

Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration v. Mok (1994) 127 ALR 223

Chen Ru Mei v. The Minister for Immigration and Ethnic Affairs (unreported: 30 June 1995)

Wu Shan Liang v. The Minister for Immigration and Ethnic Affairs (unreported: 23 June 1995)

Li Shi Peng v. The Minister for Immigration and Ethnic Affairs (1994) 35 ALD 225

Lek v. The Minister for Immigration and Ethnic Affairs (1993) 43 FCR 100

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24

Western Television Ltd v. Australian Broadcasting Tribunal (1986) 12 FCR 414

Taveli v. The Minister for Immigration and Ethnic Affairs (1989) 86 ALR 435

CHHENG PHEA RITH v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS VG 4 of 1993; UNG SOU GUECH v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS VG 618 of 1995; GOV HANG ENG v. THE MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS VG 619 of 1995; LU SINARA v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS VG 620 of 1995

COURT:                       Sundberg J

PLACE:                       Melbourne

DATE:              31 August 1995

IN THE FEDERAL COURT OF AUSTRALIA           )

VICTORIA DISTRICT REGISTRY                            )           No. VG 4 of 1993

GENERAL DIVISION                                                )

                                                            BETWEEN:     CHHENG PHEA RITH

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

COURT:                       Sundberg J

DATE:              31 August 1995

PLACE:                       Melbourne

                                                           MINUTES OF ORDER

The Court orders that:

1.         The application be dismissed.

2.         The applicant pay the respondent's costs of the application including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA           )

VICTORIA DISTRICT REGISTRY                            )           No. VG 618 of 1995

GENERAL DIVISION                                                )

                                                            BETWEEN:     UNG SOU GUECH

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

COURT:                       Sundberg J

DATE:              31 August 1995

PLACE:                       Melbourne

                                                           MINUTES OF ORDER

The Court orders that:

1.         The application be dismissed.

2.         The applicant pay the respondent's costs of the application including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA           )

VICTORIA DISTRICT REGISTRY                            )           No. VG 619 of 1995

GENERAL DIVISION                                                )

                                                            BETWEEN:     GOV HANG ENG

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

COURT:                       Sundberg J

DATE:              31 August 1995

PLACE:                       Melbourne

                                                           MINUTES OF ORDER

The Court orders that:

1.         The application be dismissed.

2.         The applicant pay the respondent's costs of the application including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA           )

VICTORIA DISTRICT REGISTRY                            )           No. VG 620 of 1995

GENERAL DIVISION                                                )

                                                            BETWEEN:     LU SINARA

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

COURT:                       Sundberg J

DATE:              31 August 1995

PLACE:                       Melbourne

                                                           MINUTES OF ORDER

The Court orders that:

1.         The application be dismissed.

2.         The applicant pay the respondent's costs of the application including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA                       )

VICTORIA DISTRICT REGISTRY                                        )

GENERAL DIVISION                                                            )

                                                            No. VG 4 of 1993

                                                            BETWEEN:     CHHENG PHEA RITH

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

                                                            No. VG 618 of 1995

                                                            BETWEEN:     UNG SOU GUECH

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

                                                            No. VG 619 of 1995

                                                            BETWEEN:     GOV HANG ENG

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

                                                            No. VG 620 of 1995

                                                            BETWEEN:     LU SINARA

                                                                                    Applicant

                                                            AND:               THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

                                                                                    Respondent

COURT:                       Sundberg J

DATE:              31 August 1995

PLACE:                       Melbourne

                                                     REASONS FOR JUDGMENT

SUNDBERG J:

BACKGROUND

Chheng Phea Rith ("Chheng"), Lu Sinara ("Lu"), Gov Hang Eng ("Gov") and Ung Sou Guech ("Ung") are Cambodians.  Chheng arrived in Australia on the boat the "Echo" in January 1991 and applied for refugee status in August 1991.  Lu, Gov and Ung arrived on the boat the "George" in April 1991 and applied for refugee status in November 1991.  All applications were refused by the Minister, and each applicant seeks review of the applicable  decision under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act").  The matters were heard together.

SECTION 22AA

Section 22AA of the Migration Act 1958 in the form applicable to these proceedings provided that "If the Minister is satisfied that a person is a refugee, the Minister may

determine, in writing, that the person is a refugee".  In s.4 the word "refugee" was given the same meaning as it has in Art 1 of the Convention Relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) ("the Convention"), namely a person who "owing to a 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 ...".

CHHENG'S APPLICATION FOR REFUGEE STATUS

The Minister's delegate had before him a statutory declaration made by Chheng telling his life story and containing the material upon which he sought to bring himself within the definition of "refugee".  What follows is a summary of the information in that declaration.

(a)        Khmer Rouge

The Khmer Rouge were responsible for the disappearance of Chheng's mother and father.  The population of Chheng's uncle's village, where he had been sent by his father for safety, was forcibly relocated.  Chheng was sent by Pol Pot's soldiers to join a children's group, and  was forced to work very hard and was given hardly any food.  If the children were unable to complete the work allocated to them, they were beaten with sticks and refused food.  On one occasion, as punishment for fossicking for food in the jungle, Chheng was "tied up to a tree and ... left there for the ants to bite ...".  His ankles and feet were severely bitten.  There was no medication for any of the children, and some died from malnutrition and sicknesses.  Chheng knew that some people were killed by Khmer Rouge
soldiers.  In 1981 and 1982, for a few days each time, Chheng volunteered to help collect skeletons from the mass graves left by Pol Pot's soldiers.

(b)        The military

(i)         Detention/Torture

Because he had by mistake shot a Vietnamese soldier, Chheng was arrested and detained by Vietnamese soldiers and his own leaders.  First, he was placed "into a metal box which was about 150 cms square" for a period of two months.  He was only taken out for questioning and torture.  While he was in the box his hands were cuffed together, and his ankles were cuffed to a long metal rod which kept his feet about a metre apart.  While in the box, Chheng was given some food, but not nearly enough.  He was only let out of the box about six times during the two months, and then always for questioning and beating.  The second time he was questioned, Chheng was beaten with a piece of wood.  He was then given electric shocks on his head, arm and chest.  The final time he was questioned, he was given fish sauce, which caused diarrhoea.

Later Chheng was put in a "much smaller metal box" which was placed on the hot sand so that the metal heated up.  He was left there for four to five hours at a time and the heat became unbearable.  The heated metal caused Chheng severe burns, particularly on the left hand side of his chest where he still has a scar.  After he was released, Chheng was put in a dark wooden cell which was about three metres by two metres, with about four to five other prisoners.   The cell had no windows, and the prisoners were leg-cuffed to a rod attached to the  floor.   He  spent  three  years  in  the  cell  during  which  time  his  health
deteriorated greatly, mainly due to the fact that he was given very little food and there was no medication.

(ii)        Confessions made while detained

The first time he was questioned, the Vietnamese soldiers accused Chheng of having joined Pol Pot, and they said that this was why he had killed the Vietnamese soldier.  He denied that he had joined Pol Pot, and maintained that in shooting the soldier he was only following the orders of his superiors.  However, when he was brought out of the small metal box, Chheng was prepared to say anything that would make the soldiers happy.  Thus he confessed to being a Pol Pot soldier.

(iii)       Desertion

Chheng was released from custody in 1989 and went to live with his uncle.  Five months after his release he received a letter from his superior officer asking him to return to the army.  This was followed by another letter a few weeks later, and then by a visit from a soldier.  Chheng deserted, and went to live in Kompong Som.  Although he does not know "what the punishment for deserting the army is", he thinks that he would go to prison again and "there is no written law" saying for how long he would be in prison.  Chheng contends that if he were again imprisoned, he would be tortured in the way he was before, and that the torture might be worse.

(c)        Illegal departure from Cambodia

Chheng left Cambodia by boat, and was involved in the provision of the motor used in the boat.  He states that if he is returned to Cambodia he will be placed in prison.  He has seen people arrested for trying to leave Cambodia.  He feels that even if escorted back by an international organisation, as soon as the organisation left, he would be imprisoned.  He feels that the fact that he was involved with the provision of the boat's motor would only make his position worse.

THE DELEGATE'S DECISION

Chheng's application was refused on 24 December 1992.  The following is a summary of the delegate's reasons for refusal.

(a)        Khmer Rouge

Khmer Rouge activity is limited to certain geographical areas of Cambodia.  If Chheng returns to Cambodia, he will be sent to an area where there is no Khmer Rouge activity.  There is no evidence that returnees have suffered at the hands of the Khmer Rouge.  The delegate concluded that there was "not a real chance" that the applicant would be persecuted by the Khmer Rouge should he return to Cambodia.

(b)        The military

The Hun Sen regime, the faction feared by Chheng, is a party to the Cambodian peace process, and is complying with it.  Prior to the peace agreement, desertion was wide-spread, and there is no indication that punitive action has been taken by the Hun Sen government against deserters.  Forced military service no longer applies.  There is no longer any continuing Vietnamese military presence in Cambodia.  Disciplinary treatment has now concluded, as evidenced by the fact that the army actually sought Chheng's return.  The
delegate concluded that in the absence of evidence that former deserters were now being punished on their return, there was "not a real chance" that Chheng would face persecution.

(c)        Illegal departure from Cambodia

The delegate did not accept that there was any "real chance" that Chheng would be persecuted on his return.  Evidence with respect to voluntary returnees indicates that there has been no adverse treatment.  The Peace Agreement provides that returnees will not be subject to persecution on account of their departure from Cambodia.  It "is speculative to suggest that involuntary returnees will attract any adverse treatment, or indeed that they will be treated differently from voluntary returnees".

LU'S APPLICATION

The following is a summary of Lu's statutory declaration in support of his application for refugee status.

(a)        The Khmer Rouge

Lu states that "under Pol Pot [he] suffered a lot".  The Khmer Rouge took his family and killed them.  He was separated from his father in 1975, and in 1977, when he was in a "youth camp", Lu received a message which said that his father had been taken to an "education camp".  Lu knew, "from past experience", that this meant that the Khmer Rouge had killed his father.  He was also told that his sister, her husband, and their two children had been taken away and killed.

In the youth camp, Lu worked under "terrible conditions" with little food and for very long hours for the Khmer Rouge.  He saw "terrible things".  Some people "just disappeared".  If you did anything wrong they would kill you.

(b)        Ethnicity

Lu says that the government has classified him as Chinese and not as Cambodian.  At one stage, at least, the government's intention was to group the Chinese together and evacuate them to the countryside.  In 1979, after having applied for work on the government transport boat, Lu was rejected because he was Chinese.

(c)        Difficulties with Vietnamese Authorities

After the Vietnamese invaded Cambodia, Lu went to Phnom Penh.  He was arrested by the Vietnamese who thought he and his companion were "Pol Pot people".  Lu was detained by the Vietnamese for about two months, and during this period was tortured and interrogated.  After an interpreter arrived, he was "indoctrinated".

(d)        Arbitrary use of power by Cambodian Authorities

Lu is concerned by the arbitrary use of power by the State in Cambodia, and the abuse that this leads to.  He claims that "those in charge have guns and make their own rule of law".  There is no law and order and the State treats people "any way" it wants.  If they suspect someone of wrong-doing they just kill him.  Lu observed "cleaning up" operations orchestrated by the Phnom Penh authorities on the wharves at Kompong Som.  These commenced in 1980, and were continuing in 1991, when Lu left the country.

Sometimes people were taken away for an alleged political affiliation or because they had allegedly committed acts of violence.  However, there "were times when the authorities just came in and took away people who did not support any particular faction", and Lu feared that the same would happen to him.  In casual conversations with his friends at the port, Lu "expressed his disapproval of the government".  When people were taken away "it seemed a very long time before some of them returned - others never returned".

(e)        Illegal departure from Cambodia

Lu fears that "by running away" he has demonstrated that he "disapproves" of the Government's actions.

(f)         War-torn state of Cambodia

Lu contends that the war in Cambodia has been raging for so many years that he does not believe that it will ever stop.  Just before he left Cambodia in March 1991 there was very heavy fighting.

THE DELEGATE'S DECISION

Lu's application was refused on 24 December 1992.  The following is a summary of the delegate's reasons for refusal.

(a)        The Khmer Rouge

While the Khmer Rouge is still active, its activity is limited to certain geographical areas.  If the applicant is returned to Cambodia, he will be sent to an area where there is no Khmer
Rouge activity.  The delegate found that there was "not a real chance" that Lu would be persecuted by the Khmer Rouge on return.

(b)        Chinese ethnicity

"Official" discrimination pursuant to Ordinance 351 against those of Chinese descent is no longer being enforced, and there is tolerance of Chinese cultural activities.  There is also evidence of strong Chinese involvement in the commercial sector.  Persons of Chinese ethnicity are active in the Cambodian workforce, at least in the commercial sector.  Any fear of persecution that Lu might have based on his Chinese ethnicity is not well-founded.  Lu was able to find long-term employment, albeit of a low paying kind, with the port authority.  The applicant's fears of conscription and forced labour are not justified, as they are no longer practised.

(c)        Difficulties with Vietnamese Authorities

There is no continuing Vietnamese military presence in Cambodia.

(d)        Arbitrary use of power by Cambodian Authorities

The applicant's fears in this regard are not well-founded, as Hun Sen is a party to the peace process and is complying with that process.

(e)        Illegal departure and return to Cambodia

Evidence suggests that those returning to Cambodia voluntarily have not suffered any ill treatment.  It "is speculative to suggest that voluntary refugees will attract any adverse treatment or indeed, that they will be treated differently from voluntary returnees".

GOV'S APPLICATION

The following is a summary of Gov's statutory declaration in support of his application for refugee status.

(a)        Khmer Rouge

In 1975, when Pol Pot took over, Gov's family was forced to move to Srok Tbong Khmum and was separated into different groups for purposes of work.  He only saw his parents and siblings every three or six months.  The group to which Gov belonged was "worked very hard day and night".  A lot of people died of starvation, and others were killed when dams being built collapsed.  If people were not able to go to work, they were taken away by the group leader and disappeared.

In 1978 Gov escaped from his group.  About a month later he rejoined the group to avoid endangering his aunt, with whom he was hiding, but he had to bribe the group leader, Hang, and Hang's colleague Sarann, so that he would not be executed.  Later the Vietnamese took over.  Ultimately Sarann, who had been convicted and detained for two months pursuant to a complaint made by Gov, joined the military service under the Vietnamese.  Gov and his family paid bribes to Sarann under fear of imprisonment and torture if they did not comply.  Others, who had not paid bribes, had suffered in this way.  Gov feared Sarann so much that in June 1980 he left Srok Tbong Khmum and went to Kompong Som.

(b)        Ethnicity and religion

Gov claims that he needs to stay in Australia because in Cambodia Chinese people are persecuted by the authorities.  Since Pol Pot's time to the present day ethnic Chinese "have
no rights to do what we want".  After Hun Sen came to power the authorities classified all Chinese as "351".  Ethnic Chinese are singled out by the authorities to do work such as forest clearance.  This is dangerous as there are a lot of mines on the border with Thailand, and a person clearing the forest may lose a leg or hand or be killed.  Avoidance of forest clearance requires bribery.  Bribes are also required if ethnic Chinese are to work in the market, and very few ethnic Chinese can get jobs in the government.  Ethnic Chinese are not allowed to worship their ancestors, celebrate Chinese New Year or speak the Chinese language.

(c)        Assisting refugees to escape from Vietnam and problems with Cambodian Military

Gov claims that he helped refugees from Vietnam escape to Thailand, ultimately arranging for six groups varying in size from 20 to 30 people to escape.  In order to arrange the escapes, Gov had to bribe soldiers.  Part of the bribe was paid in advance, and the balance when the refugee was safely in Thailand.  The idea was that the relatives in Vietnam would pay Gov money when the refugee was safe, part of which he would use to pay the balance of the bribe.

However, after the second and subsequent trips, some of the families in Vietnam refused to pay Gov.  Consequently, he did not have enough to pay all the bribes, and as a result of this he was in serious trouble.  Soldiers told Gov that if they did not get their money they would kill him.  A letter received from his brother when he was in Australia informed Gov that the soldiers were still searching for him, and that if they found him they would kill him.  Gov no longer has this letter as he has sent it to his sister in Indonesia.

(d)        Fiancée

Gov escaped from Cambodia with Ung, his fiancée.  Ung's adoptive father is a soldier and would have preferred Ung to have married one of his soldiers.

THE DELEGATE'S DECISION

Gov's application was refused on 3 March 1993.  The following is a summary of the delegate's reasons for refusal.

(a)        Khmer Rouge

Khmer Rouge activity is limited to certain geographical areas.  If Gov is returned to Cambodia, it will be to an area where there is no Khmer Rouge activity.  Gov has not experienced problems related to the Khmer Rouge since 1979.  From 1980 to his departure, Gov lived in Kompong Som, an area not controlled by the Khmer Rouge.  The delegate found that there was "not a real chance" that Gov would be persecuted by the Khmer Rouge on return to Cambodia.

(b)        Chinese ethnicity

Advice from the Department of Foreign Affairs and Trade (DFAT) indicates that discrimination against the Chinese pursuant to Ordinance 351 is no longer enforced.  There is also evidence of tolerance of Chinese cultural activities in the community and of strong Chinese involvement in the commercial sector.  The applicant was able to operate a business selling rice, sugar and fish.  Conscription and forced labour (e.g. forest clearing) are no longer applied.  The delegate concluded that there was "not a real chance" that Gov would be persecuted for reasons of race on his return.

(c)        Religion

In an interview with Department officers in December 1991 Gov said that he did not really care about practising his Chinese religion or customs.  Nothing serious ever happened to him in relation to his practice of Chinese customs or speaking the Chinese language.  In any event, steps have been taken by the Phnom Penh authorities to ease long-standing restrictions on the practice of religion.  Chinese temples are active, there is official tolerance of Chinese Buddhist activities, and celebration of the Chinese New Year is permitted.  The delegate found that even if Gov did intend to practise his religion, there was "not a real chance" that he would be persecuted on the ground of religion on his return.

(d)        Assisting refugees to escape from Vietnam

There is no longer an official Vietnamese presence in Cambodia.  The factions of which Gov is worried are all parties to the peace process and are complying with that process.  Accordingly, there was "not a real chance" that Gov would face persecution were he to return.

(e)        Illegal departure from and return to Cambodia

Material before the delegate showed that voluntary returnees have not experienced adverse treatment upon their return.  It "is speculative to suggest that voluntary returnees will attract any adverse treatment ... or will be treated differently from voluntary returnees".

(f)         General situation in Cambodia

The general instability or even civil war in Cambodia provided general background against which to assess specific claims, but were not themselves Convention related.

UNG'S APPLICATION

The following is a summary of the information in Ung's statutory declaration.

(a)        The Khmer Rouge

Ung claims that both her parents were killed by the Khmer Rouge.

(b)        Chinese ethnicity

According to Ung, her family's Chinese origin may have been one reason why her father was taken by the Khmer Rouge.  This may also have explained her mother's disappearance.  "In Pol Pot time they didn't like Chinese ...".  Later, too, Ung claims that there was bias towards those of Chinese origin.  The leader of the group in her area despised Chinese people.  Chinese culture was oppressed.  "During Chinese New Year if someone lit the fireworks they would come to our home and stop us".

(c)        Relationship with "uncle"

Ung's relationship with her "adopted uncle", Som Bo, causes her a deal of concern.  He did not permit her to complete her two years of education, and she was required to stay home to cook rice, look after the children and clean the house.  The uncle thought he could tell her to marry whomever he liked, and forced her to marry a soldier who worked with him.  When Ung objected to this he "tried to hit [her] and punish [her]".  The uncle did not want her to go out anywhere.  She wasn't free to live and do as she liked.

(d)        Return to Cambodia

Ung maintains that there are particular problems directly associated with her return to Cambodia.  First, she fears that the authorities will imprison, question and persecute her for leaving Cambodia.  Next she contends that her uncle would "hit ... punish ... and torture [her] as he wanted to".  Finally, she is afraid that the "country's got war" - "Australia is better because there is no war".

THE DELEGATE'S DECISION

Ung's application was refused on 24 December 1992.  The following is a summary of the delegate's reasons for refusal.

(a)        Khmer Rouge

Ung has not claimed any problem relating to the Khmer Rouge since 1979, and immediately prior to her departure from Cambodia lived in an area that was not under the control or influence of the Khmer Rouge.  The authority of the Khmer Rouge is limited to certain geographical areas.  If Ung is returned to Cambodia, it will be to an area where there is no Khmer Rouge activity.  There was therefore "not a real chance" that Ung would be persecuted by the Khmer Rouge on her return.

(b)        Ethnicity

Advice from DFAT indicates that there is no evidence that Chinese cultural activities are not tolerated, and there is evidence of strong Chinese involvement in the commercial sector.  Accordingly, any fear of persecution on the ground of race was not well-founded.

(c)        Relationship with uncle

Her problems with her uncle are "private or domestic" and not based on a Convention reason.

(d)        Return to Cambodia

Various sources dealing with voluntary returnees suggest that such returnees are not subject to adverse treatment upon their return to Cambodia.  It "is speculative to suggest that involuntary returnees will ... be treated differently from voluntary returnees".  That Cambodia is a war-torn state is not Convention related, but rather comprises part of the "general background" against which to assess specific claims.

DFAT ASSESSMENT

All the delegates refer to DFAT's "Assessment of the Current Situation in Cambodia" as at 22 June 1992.  The assessment 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 ensuing 12 to 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, has abandoned the settlement, and on the progress being made, notwithstanding a number of difficulties and delays, in the implementation of its provisions.

However the situation 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 the peace-keeping operations.  Phase II involves a formal, UN-verified ceasefire, cantonment of military forces and their disarmament, and eventual demobilisation of at least 70 per cent of those forces.  The non-compliance was to be discussed at a Ministerial Conference on Cambodia in Tokyo on 22 June.  At the time of completion of the DFAT assessment, the outcome of this potentially important meeting was 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 is now participating in talks in Tokyo on the impasse.  Prior to this problem, the settlement has already faced a number of serious challenges.  A dogmatic assertion of the inevitability of the settlement being brought to a successful conclusion cannot be justified.  Nevertheless, experience to date indicates that the main trend is in that direction.

Discussing the military situation, the assessment notes an outbreak of fighting in mid June 1992 in Kompong Thom and Preah Vihear occasioned by Khmer Rouge attacks on government forces who were clearing route 12 of mines and obstacles placed there by the Khmer Rouge.  It observes that the Khmer Rouge had failed to meet a number of
requirements for all the factions laid down by the UN's Mr. Akashi, the most important being that UNTAC have full and unrestricted movement in the areas under Khmer Rouge control.  Nevertheless, Phase II began on schedule on 13 June, albeit without the co-operation of the Khmer Rouge.

Dealing with the Khmer Rouge, the assessment states that throughout the implementation process, through its part in the ceasefire violations, slowness in complying with military arrangements and in providing access to areas under its control, the Khmer Rouge has demonstrated a determination to deny any advantage to its main adversary, the State of Cambodia (SOC).  The Khmer Rouge's failure to meet UNTAC requirements and commence Phase II with the other factions is, according to the assessment, of particular concern.  Assuming that this difficulty is overcome, there is no doubt that Khmer Rouge compliance with the terms of the settlement will still need careful watching and firm handling by the UN throughout the transitional period.

While the Khmer Rouge has dragged its feet in the initial implementation phase of the settlement, its pattern of behaviour has been to push its 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, states the assessment, 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.

Intelligence available to the Australian Government indicates that Khmer Rouge guerrilla groups are mainly present in sparsely-populated rural areas in the north-west and north-central regions of Cambodia (Battambang, Banteay Meanchey, Siem Reap, Preah Vihear, Kompong Thom) with smaller, scattered units operating in mountainous areas to the south-west and north-east.  During the war with the SOC, Khmer Rouge military strategy was to cut-off rather than capture larger towns which they were not in any case capable of holding.  The Khmer Rouge is therefore not active in or near major population centres.

The Australian Government is not in a position to determine in which areas of Cambodia returnees from Australia will settle.  This would presumably be a matter for the returnees, the United Nations High Commissioner for Refugees (UNHCR) and the SNC to decide upon.  If they returned to their former homes in urban areas such as Phnom Penh or Kompong Som, as seems most likely, there is nothing to suggest they would be in danger from Khmer Rouge military activity or intimidation.  It is a principle of the repatriation provisions of the Comprehensive Settlement that nobody should be forced to return to areas which were judged unstable or unsafe.

On the subject of human rights, the assessment states that the International Committee of the Red Cross (ICRC) which, under the terms of the Paris Accords, is responsible for supervising the release of prisoners of war and civilian detainees, has been pleased by the co-operation of the SOC authorities and the two non-communist factions in this area.  ICRC
has advised that all but a very small number of such prisoners have been released by the SOC under ICRC supervision.  ICRC 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 whether any prisoners are being held there.  On 9 May 1992 the Khmer Rouge agreed, as part of the pre-conditions for the commencement of the formal UNTAC supervised ceasefire, to grant UNTAC complete access to the areas under its control.  However, to date this has not been forthcoming.

Discussing the situation of the ethnic Chinese, the assessment states that while not expressly targeted by the Khmer Rouge for persecution, the Chinese population (which accounted for around 6 per cent of Cambodia's population before 1975) lived primarily in urban centres and consequently suffered badly under Pol Pot's policy of forcing city-dwellers to do hard labour in rural areas in the period 1975 to 1979.

In the 1980 census carried out by the SOC, ethnic Chinese accounted for 0.6 per cent of the Cambodian population.  The 1981 People's Republic of Kampuchea constitution recognised the rights of ethnic minorities.  However, there was evidence of non-official anti-Chinese discrimination in the early years of the regime, leading to disproportionate ethnic Chinese emigration, legal or otherwise.

While Australia's Mission in Cambodia has not been able to obtain clear official confirmation of the status of classification 351, DFAT understands that this was a Ministerial Directive rather than a law or a statute.  DFAT has been advised by a leading member of the Chinese community in Phnom Pen that classification 351 had been "abolished, it has
totally perished".  Contact with the Chinese community indicates that while in the early years discrimination did exist, and classification 351 was regarded as the basis for such discrimination, this has not generally been the case since about 1985.  It is recognised that individual incidents of discrimination may have occurred, but these may not have been on the basis of ethnicity or officially condoned.

There is no evidence to suggest that in recent years there has been official persecution of the ethnic Chinese community.  On the contrary, Chinese temples and freedom of worship are in evidence, Chinese New Year is freely celebrated, Chinese language signs are in common usage, and the Chinese community dominates the commercial sector, including import-export, restaurants, hotels and travel agencies, and approval has recently been granted for the publication of a Chinese newspaper.

DFAT has no evidence to support claims of discrimination against ethnic Chinese in Government positions, educational opportunities, housing, passport or travel applications.  There are no requirements for separate identification papers.

DFAT UPDATE 4 DECEMBER 1992

By letter to the Department of Immigration and Ethnic Affairs dated 4 December 1992 DFAT confirmed that the content of the 22 June assessment relating to ethnic Chinese and the repatriation of refugees was still current.  The position was the same in relation to conscription, but DFAT added that the Australian Mission in Phnom Penh had confirmed that there were no conscripted labour camps in existence and no conscripted labour in areas to which the UN has access and to which returnees are repatriated.  The position as to the
Khmer Rouge was said to be the same, save that it was now present in some rural areas of Kompong Cham Province.

SHOESMITH PAPER

Also before the delegates was a paper prepared by Dr. Dennis Shoesmith called "Cambodia: The Obstacles to Peace".  In commending the paper to its readers, the Director of the Northern Territory University's Centre for Southeast Asian Studies (the publisher of the paper) observes that the Centre was prominent in promoting the claims to refugee status of Cambodian boat people who had arrived in Darwin in 1990.  Dr. Shoesmith was a "conspicuous" member of the Cambodians' Darwin Support Group, who had continuously urged the Government to accept those asylum seekers.  He had made submissions to a Senate Parliamentary Inquiry, and broadcast and appeared on television "in their support".  In introducing the paper Dr. Shoesmith notes that the Cambodian situation has changed rapidly in past months and the pace of change is accelerating.  He says that the information used in his study ends in April 1992, on the eve of the critical Phase II of the United Nations comprehensive peace plan.  That is to say, the study ends some two months before the DFAT assessment.

The paper is 80 pages long and consists of seven chapters.  At the hearing attention was directed by the applicants to parts of chapters IV - "The Khmer Rouge", V - "The Military Balance", and VI - "War and Reconstruction", and I will confine my account of the paper to the segments relied on.  In the Khmer Rouge chapter the author says that the Khmer Rouge, under the same leadership responsible for the "extremist and murderous" policies of the 1970s, presents the central problem for a peaceful resolution of the Cambodian crisis.  The Khmer Rouge's Party of Democratic Kampuchea is an equal partner in the interim SNC and has the right to establish its own headquarters in Phnom Penh.  It will contest the planned elections and can expect to win some seats from those areas north, west and south of the capital where it presently has a substantial presence.  Over the period 1987 to early 1992 Khmer Rouge units have "silently extended control" over village communities throughout west and north Cambodia.  Following Vietnamese withdrawal in September, the Khmer Rouge moved rapidly to establish larger 'liberated zones' with a growing population under its direct military and political control.  Its main base has been in Battambang province (in the north west), but other base areas were built up in the western and northern provinces.  Outside these 'liberated zones' Khmer Rouge maintained de facto control in 1990-1991 through periodic visits to villages as far as Kompong Thom province (central Cambodia) and Kompong Speu province (south west).

In the chapter on the Military Balance the author states that the success of UTAC's task of demobilising and disarming the factions rests on the ability of the UN survey and monitoring teams to move freely around the country.  On 8 April 1992 Mr. Akashi condemned the Khmer Rouge for failing to co-operate by refusing to allow UN officials free access to Khmer Rouge territory.  UN "alarm" is heightened by the worst ceasefire violations since the peace accords were signed in October 1991.  There is "strong evidence" that the Khmer Rouge is intentionally delaying implementation of the UNTAC programme to consolidate its hold on contested rural areas and undermine the capacity of the Phnom Penh regime to survive the transition period intact.

The Khmer Rouge's armed wing, the National Army of Democratic Kampuchea (NADK), is the largest and most effective armed force opposing Phnom Penh.  During three major campaigns against Phnom Penh between late 1989 and mid-1991, the NADK demonstrated a formidable military capacity.  It deployed units at battalion and even brigade strength in provinces west, north and south of Phnom Penh, and from late 1990 opened a new front in Kompong Cham, Prey Veng and Svay Rieng, east of the capital.  Except in northwestern and parts of northern Cambodia, the Khmer Rouge has not tried permanently to secure territory.  It has been more interested in disrupting the Phnom Penh government's lines of communication and breaking its access to the rural population.  The NADK amply demonstrated its ability to move through the countryside, occupying even provincial towns for days at a time.  Some five months after the Paris accords, the Khmer Rouge has given no indication that it is prepared to surrender its military capacity to resume the armed struggle.  By August 1990 the NADK was estimated to command "anything from 13,000 to 30,000 or many more fighters".  The NADK seeks to win support through correct and uncorrupt behaviour towards villagers, paying for rice and assistance, and using "developed propaganda techniques" to gain support.  The underside of this programme is intimidation, coercion and elimination of unco-operative elements.  The policy of proper conduct towards civilians' is highly selective.  'Enemy elements' are subjected to persecution and terror.  As recently as March 1992 UN officials protested against the detention by the Khmer Rouge guerillas of the civilian heads of a refugee camp under Khmer Rouge control in Thailand.  Assessments vary regarding the military capacity of the Khmer Rouge by the time of the June ceasefire.  The American CIA's judgment was that by mid-1990 the military balance had tipped in the Khmer Rouge's favour.  The Khmer Rouge launched a "sustained and well-co-ordinated" military campaign in January 1992 to capture a string of government held
villages in Kompong Thom province north of Phnom Penh.  The fighting has been for territory in advance of the full deployment of UNTAC forces and to control strategic highway 12 linking Phnom Penh with the north.  The Khmer Rouge has persistently obstructed UN surveillance teams wishing to enter the contested areas.  Khmer Rouge forces were still seeking to impose military control of areas in Kompong Thom in late April 1992.  The fighting since January has been concentrated in Kompong Thom, a strategically vital and contested province.  Where the Khmer Rouge has its own 'liberated areas' there have not been reports of fighting on that scale.  At the time of the June 1991 ceasefire the Khmer Rouge was present in military strength in provinces west, south and east of Phnom Penh, as well as in the north and northwest.  There is no reason to believe it has withdrawn from these provinces.  The absence of serious military clashes, in other words, may indicate no more than that in many provinces the factions have tacitly agreed not to test each other for the time being.

In the chapter on War and Reconstruction the author states that the Phnom Penh government has made some efforts to improve human rights, but torture and detention without trial by local authorities were still going on.  A fifth to a quarter of the refugees who fled to the Thai border in the latter part of 1990, and many of the boat people who arrived in Australia, were escaping abuses by government officials as well as the Khmer Rouge.  A US State Department human rights report in mid-1991 noted claims by former prisoners that the incidence of torture had declined in 1989, and that there were no reports of political killings in 1990.  But human rights abuses were still widespread, including arbitrary detention and serious abuse of political prisoners.

Dealing with ethnic minorities, the author expresses the view that in the political struggle which will precede the national elections, some ethnic minorities will be particularly vulnerable to political persecution.  At highest risk will be Vietnamese living in Cambodia, but Chinese Cambodians will also be at risk.  The ethnic Chinese suffered terribly under Pol Pot.  They were targeted by the Khmer Rouge not so much because of their race, but because they were seen as the archetypal city dwellers and therefore the class enemy.  The Chinese language was proscribed and so were customs and traditions identifying a Chinese community.  During Pol Pot's time the ethnic Chinese were officially classified as 'residents' even if they were citizens.  In 1984 the government enacted tough anti-Chinese regulations through Ordinance 351, forbidding the use of Chinese language or customs even within the family.  According to informants among the Cambodian boat people who arrived in Australia in 1990, Ordinance 351 was enforced by local officials and police who conducted frequent house-to-house searches.  The ethnic Chinese among the Cambodian boat people were acutely conscious of these discriminatory regulations.  They claim that citizens identified by government officials as ethnic Chinese (estimated at up to 500,000) were forbidden to use Chinese names, the Chinese language or to maintain Chinese religious and cultural traditions even within the family home.  The penalties could be severe and include lengthy imprisonment.

In the freer economic conditions introduced through the 1989 reforms, some ethnic Chinese have re-emerged as money lenders and black market traders.  They are popularly believed to be involved in petty corruption with officials, and are becoming a resented and vulnerable target for angry and frightened Khmers aware of widening income disparities in Phnom Penh.  It is no coincidence that 35 to 40 per cent of the Cambodian boat people are of
Chinese background.  Ethnic Chinese were persecuted in the past by the Khmer Rouge because they were involved in trade or usury.  As the Khmer Rouge moves freely through rural Cambodia, Chinese Cambodians are again at risk not so much because of their race but because they are identified with the 'class enemy'.  More recently, Phnom Penh and Hanoi have sought improved bilateral ties with China and, perhaps as a concession to Beijing, the SOC has recently relaxed some of the restrictions on Chinese 'residents'.  Recent relaxations of restrictions on the practice of Chinese customs and religion also follow on the liberalisation policy towards the Theravada Buddhism of ethnic Khmers.

SHOESMITH'S FEBRUARY 1992 PAPER

Another document before the delegates was Dr. Shoesmith's paper "Cambodia after the Paris Agreements - The Continuing Case for Asylum".  It covers much the same ground as the later paper, but my attention was directed to one passage dealing with boat people's fear of return to Cambodia.  The author contends that their fear of persecution is well-founded for two reasons.  First, conditions in Cambodia are uncertain and volatile and can be expected to further destabilise in the political struggles between now and the national elections.  Secondly, involuntary returnees will be a visible and vulnerable group in a factious and still violent political environment.  Those of Chinese ethnic origin will be doubly exposed as members of a minority which has suffered official and social discrimination.  The relaxation of some discriminatory regulations does not mean that Chinese Cambodians are not at risk of persecution by local party leaders and agitators in the lead-up to elections.

OTHER MATERIAL

The applicants relied on other material before the delegates to show the expanding military role of the Khmer Rouge.  The first was the Refugee Council of Australia Submission in response to the Refugee Status Review Committee's recommendation to refuse the grant of refugee status to the "Echo" boat people (Chheng).  It is dated 20 November 1992 and consists of newspaper extracts detailing cease fire violations by the Khmer Rouge between May and September 1992 and reports of an expansion of Khmer Rouge influence in northern Cambodia.  The second was a similar Submission relating to the "George" boat people (Lu, Gov and Ung).  The third was the Asia Watch Report of September 1992.  It said that Khmer Rouge areas were scattered throughout Cambodia in Kampot province, south and west Kompong Spue, west Pursat, west Kompong Chhnang, west Svay Rieng and Kompong Thom.  It refers to Khmer Rouge infiltration into SOC territory since the ceasefire, Khmer Rouge refusal to allow UN representatives into areas held by it, and fighting in north west Cambodia in late 1992.

"WELL-FOUNDED FEAR"

The test to be applied in determining whether an applicant has satisfied the definition of a refugee is whether he has shown a genuine fear founded on a real chance that he would be persecuted for one of the stipulated reasons if he returned to the country of his nationality.  See Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 C.L.R. 379 and Minister for Immigration v. Mok (1994) 127 A.L.R. 223, at pp.250-252.  The test is to be applied at the time the determination is made.  In Chan's Case, at p.389, Mason C.J. said that if an applicant establishes that there is a real chance of persecution, then his fear is well-founded notwithstanding that there is a less than a 50 per cent chance of persecution occurring.  Accordingly, the Minister or his delegate does not address the correct question by determining the matter on the balance of probabilities.  See Mok's Case, at pp.252-253.

THE APPLICATIONS

Chheng's grounds were that the decision not to grant him refugee status (a) involved errors of law, (b) was reached in breach of the rules of natural justice, (c) constituted an improper exercise of power in that the Minister failed to have regard to relevant considerations, (d) constituted an improper exercise of power in that the Minister took into account irrelevant considerations, and (e) was so unreasonable that no reasonable person could have reached it.  Grounds (b) and (d) were not pursued.

Lu's, Gov's and Ung's grounds were the same as Chheng's, and they too persisted only with error of law, relevant considerations and unreasonableness.

WRONG TEST

For the applicants it was submitted that each delegate had failed to address the "real chance" question in that he or she had applied a "probability" rather than a "possibility" test in determining whether the applicants had a well founded fear of persecution.  Reliance was placed on Mok's Case, where the delegate was held to have committed this error.  There, after referring to part of the Shoesmith paper dealing with Chinese ethnicity, the delegate said that he gave greater weight to more recent material in the DFAT assessment than to the Shoesmith material.  But Mok is readily distinguishable.  The delegate in Mok on a number of occasions used the expression "I gave greater weight to" one body of material than to another, and the Full Court thought that was the language of a decision-maker deciding
something upon the balance of probabilities rather than deciding whether there was a real chance of something happening.  In the present cases the delegates do not commit that error.  None of them uses expressions suggestive of the application of a balance of probabilities test.  Further, the Mok delegate did not mention the "real chance" test, unlike all delegates here.

The applicants also relied on Chen v. The Minister (unreported: 30 June 1995).  In that case the Refugee Review Tribunal found that it was "unlikely" that Chen would be disbarred from teaching, or that he would be refused public sector work by reason of his past pro-democracy activities.  The Tribunal also said that it was "equally unlikely" that a continuation of the past level of dissent would engender consequences amounting to persecution as distinct from further acts of discrimination.  The Tribunal concluded that it was unable to find that there was a "real chance" of persecution if Chen returned to China.   The Full Court held that the Tribunal had equated the finding that discrimination was unlikely with the absence of a real chance of it occurring, and thereby fell into error.  The delegates in the present case did not fall into that error.  They did not use the language used in Chen or any other form of words suggesting that they were not genuinely applying the "real chance" test, as opposed to merely mouthing the test though obviously, as in Mok and Chen, applying a stricter test.

The applicants then argued that even though the words "greater weight" do not appear in the delegates' decisions, it is nevertheless the test they applied.  Taking as the example the delegate's treatment of Lu's Chinese ethnicity claim, counsel submitted that what the delegate had really done was to weigh DFAT and Shoesmith and prefer the former without
in truth applying the "real chance" test.  It was said that the case was really no different from Mok.  In Wu v. The Minister (unreported: 23 June 1995) the Full Court said that where the correct test is stated in a delegate's reasons, they are entitled to a beneficial construction.  Before the view is taken that the correct test has not been applied, it must appear clearly from what the delegate has written.  The delegate's reasons are to be read as a whole, and the language used is to be considered in its own factual setting.  In Lu's case the delegate correctly stated the "real chance" test, and what I am being invited to do is to read in the Mok error.  That is not to give the delegate's reasons a beneficial, that is to say generous, construction.  I do not think that there is any error in what the delegate said in Lu's case or in the other two ethnicity cases, and certainly no error "appears clearly" from what the delegates have written.

FUTURE POSSIBILITIES

The applicants contend that the delegates erred in failing to look at future possibilities in coming to their decisions.  Thus, in dismissing the Khmer Rouge threat, they failed to advert to the possibility that the Khmer Rouge might in the future expand the areas under its control, so that an area at present free of the Khmer Rouge might in the foreseeable future become controlled by the Khmer Rouge.  Similarly, it was said, in relation to Chheng, that the delegate had not taken account of the possibility that the Vietnamese army might return to Cambodia, or that the parties to the Peace Process, though now complying with it, might in the future decide not to comply.  It was said that the delegates had taken a snapshot of the Cambodian situation on the date of decision, and had made no attempt to look into the reasonably foreseeable future in order to determine whether there was a risk that the situation found to be favourable for a safe return might change.  The point was put most
forcibly in relation to the Khmer Rouge.  Let it be assumed, so the argument ran, that an applicant was returned to Phnom Penh, an area free of Khmer Rouge and open to UNHCR monitoring.  But what if the Khmer Rouge later overran the capital?  The applicant would no longer be safe.  The delegate did not advert to this possibility, and therefore the "real chance" test had not in truth been applied despite the fact that those words appeared in the findings.  Reliance was placed on a passage from the judgment of Keeley J. at first instance in Mok (1993) 47 F.C.R. 1, at p.66:

                In my opinion, the question of whether there was a real chance of persecution necessarily required the delegate to look at the future in so far as it was reasonably foreseeable at the time when he was making his decision.  On the one hand the delegate was not required to look at the possibility of something occurring in 50 years time ....  On the other hand a delegate errs in law, in my opinion, if he confines his attention to whether there is a real chance of persecution on the day after an applicant's return.

The Mok delegate had not in his reasons mentioned the "real chance" test.  He was cross-examined at length, and it became clear that in considering whether there was well-founded fear of persecution, he had confined himself to possible persecution on the day of the applicant's return to Cambodia.  When asked whether he looked to see what the position might be in two months time, he said "it wasn't relevant to my decision when she was removed".  As Keeley J. said in the sentence following the passage relied on: "... on the delegate's evidence of what he considered, he erred in law".  That cannot be said of the delegates in the present case.  In Chheng's case, after summarising the material in Chheng's statutory declaration, the delegate referred to other submissions made by Chheng or on his behalf.  These included a submission received on 10 March 1992 referring to "the past, current and future situation in Cambodia, particularly regarding human rights, the Multilateral Peace Agreement, and Khmer Rouge activity (both past and present)".  The delegate summarised relevant parts of another submission in May 1992 as follows: "The ongoing civil war in Cambodia today and the acknowledged real chance of a breakdown in the peace process establishes that there is a real chance of Mr. Chheng being returned to a civil war situation".  Reference was also made to "the possible future situation in Cambodia, in particular the possibility  of a return to power by the Khmer Rouge or an inability to control their terrorist activities".  In a submission made in October 1992 the applicant still harbours the fear that the Khmer Rouge might return to power, and that it has gained in military strength since his departure.  According to the delegate, the applicant also referred to "the possible future situation in Cambodia, in particular the possibility of a return to power by the Khmer Rouge or an inability to control their terrorist activities".  A later submission covers other material including, according to the delegate's summary, "the current and future situation in Cambodia, particularly regarding human rights, treatment of ethnic Chinese and Vietnamese, repatriation of displaced persons, and including detailed comments on the DFAT assessment of Cambodia (22 June 1992)".  The delegate then refers to material in the general submissions relating to Cambodian boat people including material on "the past, current and future situation in Cambodia, particularly regarding human rights, treatment of ethnic Chinese and Vietnamese, treatment of returnees to Cambodia, including detailed comments on the DFAT assessment of Cambodia".  On numerous occasions the delegate referred to a "real chance" that Chheng would be persecuted on his return.  By contrast, the Mok delegate did not in his reasons refer to a "real chance", and in cross-examination said that he had not looked into the future.  The extracts I have quoted for the Chheng delegate's record of decision contain numerous references to the future - "the
possible future situation in Cambodia", "the possibility of a return to power by the Khmer Rouge", "the future situation in Cambodia ... regarding treatment of returnees", "the future situation in Cambodia ... regarding Khmer Rouge activity" and "the real chance of a breakdown in the peace process".  These references make untenable the submission that the Chheng delegate behaved in the same way as the Mok delegate, and eschewed any reference to future possibilities.

The other delegates followed the same course as the Chheng delegate.  In Lu's case, the delegate recorded that the submissions disclosed that Lu did not believe the peace agreement would last or that the UN peacekeepers would be successful.  She noted that the submissions referred to "the current and future situation in Cambodia", and "the past, current and future situation in Cambodia, particularly regarding human rights, treatment of ethnic Chinese and Vietnamese, treatment of returnees to Cambodia, including detailed comments on DFAT assessment of Cambodia".  In Gov's case the delegate recorded that the submissions referred to "the possible future situation in Cambodia, in particular the possibility of a return to power of the Khmer Rouge or an inability to control their terrorist activities", "the current and future situation in Cambodia, including comments on DFAT advice and opinions relating to Khmer Rouge activities in Cambodia", and "the past, current and future situation in Cambodia, particularly regarding human rights, treatment of ethnic Chinese and Vietnamese, treatment of returnees to Cambodia, including detailed comments on DFAT assessment of Cambodia".  In Ung's case the delegate recorded that the submissions referred to Ung's "fear of return of the Khmer Rouge", "the possible future situation in Cambodia, in particular the possibility of a return to power of the Khmer Rouge or an inability to control their terrorist activities", "the possibility of an outbreak of military conflict at any time", and
"the past, current and future situation in Cambodia, particularly regarding human rights, treatment of ethnic Chinese and Vietnamese, treatment of returnees to Cambodia, including detailed comments on DFAT assessment of Cambodia".

Each delegate refers to "detailed comments" on DFAT's assessment.  These are contained in the Refugee Council of Australia's submission of 20 November 1992.  This document is replete with reference to future possibilities.  Indeed the central point of the submission is that DFAT has taken a rosy coloured snapshot, and that the future holds uncertain prospects for returnees.  Thus the submission says that the Khmer Rouge is expanding its zones of control; there is a fear amongst officers that war will break out again; UN troops may have to abandon Cambodia if the Khmer Rouge makes it impossible to carry out the peace settlement; diplomats privately believed that the peace process was doomed because of Khmer Rouge intransigence; and the Khmer Rouge continues to take over villages and expand the area under its control.  The submission then states that the delegates "must take into account the fact that the Khmer Rouge has the ability to threaten major population centres.  This is a relevant consideration in the determination of the applications of these asylum seekers".

The delegates' references to a "real chance" of persecution must be seen as a reference to that chance in the context of the submissions made to them.  As I have indicated, those submissions make constant reference to what the future might hold for returnees.  To attribute to the delegates the understanding that they were, to take the Khmer Rouge as the example, to determine whether on the date of return to Cambodia the applicants would be safe, putting out of consideration what the position might be two months later, is to assume
that they have ignored the burden of the submissions put to them in the face of their recitation of them.  That does not give their reasons a "beneficial construction".  It fails to consider each case "in relation to its own factual setting".  It fails to consider the reasons for the decision "as a whole".  Cf. Wu's Case.  In my view none of the delegates applied the "real chance" test in a way which ignored the future in so far as it was reasonably foreseeable.

SPECULATION

Emphasis was placed on the passage in each of the delegates' reasons in which the suggestion that involuntary returnees would attract adverse treatment and that they would be treated differently from voluntary returnees was dismissed as "speculative".  It was said that speculation was necessarily involved in the application of the "real chance" test.  Reliance was placed on Wu's Case.  In that case the delegate's reasons contained these paragraphs:

                (4)              I find case studies of returned illegal deportees e.g. the Jeremiah and Eastwood boat people are most relevant in determining what might happen to the Labrador boat people if returned to the PRC.  Comparing the information in DFAT cables and Red Cross advice with case examples provided by the applicant of illegal deportees arrested on return, I give more weight to the DFAT and Red Cross advice on the likely treatment of Labrador refugees ....

                ...

                (7)              Of all the cases outlined above, the departure and activities since departure of the applicants from the 'Jeremiah' are very similar to that of the applicants from the Labrador ....  Therefore I give greater weight to the evidence regarding the treatment of the returnees from the 'Jeremiah' than to the other evidence of known cases and general statements regarding the likely treatment of returnees.

                ...

                (9)              Submissions have been made in relation to the applicable PRC [Chinese] law and the administrative measures which could be taken against the applicant.  I consider it speculative, however, to suggest that the applicant would be treated more harshly than in the known relevant cases.

The Full Court considered that the delegate had not applied the correct test.  It said:

                The expression "real chance of persecution" is used [in par.(12) of] the reasons.   ...  The delegate was thus aware of the test she had to apply.  Her reasons are entitled to a beneficial construction.  We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.

                Having reflected on the matter, we have reached the conclusion that the correct test was not applied.  Paragraph (9) seems to suggest that speculation ought not be engaged in.  Yet the whole exercise, involving as it does the assessment of a real chance, must be a speculative one.  One can do little else except engage in speculation ....

                Here the delegate has put speculation aside so one does not know what view she would have had if she had been prepared to engage in it.  Then there is the use of the expressions "give more weight to" and "give greater weight to" in paras.(4) and (7).  As was the case in Mok, the delegate appears to have been engaged in an exercise which involved acceptance or rejection of the available material.  ... Notwithstanding what is said in para.(12), we think that it must be concluded that the delegate did not in fact apply the correct test.  She did not turn her mind to what it involved.  As in Mok the reality of what she did seems to have been to approach the matter as if it involved the establishment of a state of affairs as being more probable than not.

As is apparent from this passage, the Court concluded that the delegate had applied a balance of probabilities test.  The evidence for this was twofold.  First, the use of the expressions "give more weight to" and "give greater weight to".  Secondly, there was the
eschewing of speculation.  It was the combination of those matters that led the Court to its conclusion.

It may be, however, that the Court would have held that the delegate had not applied the correct test even if the "weight" vice had not been present.  But the Full Court itself instructs me not to be mesmerised by the word "speculative".  Each case has to be considered in relation to its own factual setting: page 16.  Notwithstanding the use in Wu of phraeseology similar to that used in Mok, "we need ourselves to look at the reasons for decision in each of the cases to be considered": page 17.  In some cases a dismissal of something as "speculative" will constitute a refusal to engage in conjecture or surmise.  That will involve a failure to address the right question, namely whether there is a real chance of persecution.  In other cases the dismissal will involve no more than putting aside a matter on the ground that it is theoretical and not practical (cf. meaning 2 of "speculative" in the Macquarie Dictionary).  The context is all important, and a delegate, like any other writer, is entitled to be his own dictionary.  There was material before the delegates that showed that voluntary returnees had not been mistreated.  The applicants sought to distinguish this material by saying that they would be involuntary returnees.  The delegates' answer was that there was no rational ground upon which it could be suggested that treatment would depend on whether a person had returned voluntarily or involuntarily.  The distinction was simply irrelevant to the mode of treatment.  The delegates were rejecting, as mere assertion, unsupported by any evidence, the claim that there was a relevant difference between voluntary and involuntary returnees.  They were not, in my view, declining to consider the possibility that the applicants would be mistreated on their return.  In Wu, the Full Court could readily conclude that that is what the delegate had done in that case, because that was
the strong flavour imparted to the determination by the balance of probabilities ("weight") language.

It is to be remembered that the Full Court in Wu said that a delegate's reasons are entitled to a beneficial construction, at least when it appears that the delegate was aware of the relevant test to be applied, and that the view should not be taken that the wrong test has been applied unless this appears clearly from the reasons given.  In the present cases, the delegates were plainly aware of the "real chance" test, for the expression is used on several occasions in their reasons, and accordingly their reasons are entitled to a beneficial construction.  Such a construction, having regard to the context in which the reference to "speculative" occurs, leads me to the conclusion that the delegates were not eschewing a look into the reasonable future, but were rejecting as irrational or fanciful the contention that mode of treatment would differ according to whether a person was a voluntary or involuntary returnee.

It should be noted that the vice identified in Wu does not lie in the mere use of the word "speculative".  Rather it is the suggestion imparted by the word that the delegate has refused to look into the foreseeable future.  I have indicated earlier in these reasons (under the heading  Future  Possibilities  that  each  delegate  has  repeatedly  referred  to  future possibilities.  It would be entirely contrary to what the Full Court said in Wu to treat the delegates, by reason of their use of the word "speculative", as having declined to look into the future.

While contending that Wu was distinguishable from the present cases, counsel for the respondent reserved the right to contend on any  appeal that Wu was wrongly decided on the
"speculative" point, and drew attention to the fact that the High Court had granted the Minister special leave to appeal in Wu.

PARTICULAR ERRORS

(a)        Chheng

Error of law was asserted in relation to Chheng's fear of persecution because of his desertion and imputed political profile as a Khmer Rouge sympathiser.  The delegate referred to Chheng's accidental killing of a Vietnamese soldier resulting in him being imputed with that profile, and his fear of punishment by Hun Sen for having deserted.  Then he said that Chheng's fear was not well-founded for reasons which included the fact that Hun Sen was a party to the peace process and was complying with it.  Prior to the signing of the peace agreement in October 1991, desertion from the Cambodian army was widespread, but there was no indication that punitive action had been taken by Hun Sen against deserters.  Since the establishment of UNTAC in March 1992 more than 100,000 Cambodians had returned from camps in Thailand under the terms of the Paris Agreement which guarantees their rights and freedom, and it was reasonable to conclude that many of them would have been army deserters.  The delegate concluded: "Therefore, in the absence of any evidence that former deserters are now being punished on their return, I find there is not a real chance that the applicant will face persecution".  In reliance on this passage Chheng contended that the delegate had failed to consider whether there was a possibility of persecution, and had approached the matter in the form of making findings which suggested that, as in Mok, he had made his determinations on a probability rather than a possibility basis.  As I have said in other connections, nowhere in his reasons did the Mok delegate state the "real chance" test.  In the present case, in the very passage relied on by Chheng to
suggest error of law the delegate said that there was "not a real chance" of persecution.  Further, the Mok delegate's "greater weight" language led the Full Court to conclude that he saw his task as being to decide the matter on the balance of probabilities rather than the real chance/possibility basis.  No such language was used by the present delegate.  He simply said that since there was no evidence that former deserters were now being punished, there was not a real chance of persecution.  That is entirely different from balancing two pieces of conflicting evidence and giving "greater weight" to one than to the other.  Here there was only one piece of evidence, and no occasion arose for preferring it over something else.  For the reasons I have given elsewhere, a reading of the delegate's reasons as a whole discloses that when he used the expression "real chance" he was not eschewing a look into the reasonably foreseeable future, but was genuinely applying a "possibility" as opposed to a "probability" test.

(b)        Lu, Gov and Ung: Chinese ethnicity

Error of law was also alleged in relation to the delegates' findings about the 351 classification.  I will take Lu as the example.  The delegate said that she had considered the material on the effect of the classification in the Shoesmith paper and the unsourced statements therein.  She went on to say that more recent advice from DFAT indicated that although discrimination against the Chinese did exist in the early years of Ordinance 351, there was evidence that it was no longer being enforced and that there was tolerance of Chinese cultural activities within the community.  There was also evidence of strong Chinese involvement in the commercial sector.  The delegate therefore found that any fear of persecution Lu might have in this regard was not well-founded.  Lu claims that the delegate applied a "probability" rather than a "possibility" test, thereby committing the Mok error. 
The vice in Mok was that the delegate had used phrases such as "gave greater weight to", thus showing that he had applied a balance of probability test.  Further, his reasons contained no reference to the "real chance" formula.  The Lu delegate did not use language suggestive of the application of a balance of probabilities test.  And although in the "race" part of the delegate's reasons she does not employ the phrase "real chance", it is clear from the use of that expression on three other occasions that the statement that Lu's fear of persecution on 351 grounds was not well-founded is to be understood as a statement that it was not well-founded because there was no real chance of persecution.  As I have already said, a reading of the delegates' decisions as a whole discloses that their understanding of the "real chance" test did not involve a refusal to look into the reasonably foreseeable future, and accordingly the Lu delegate did not fail to assess the possibility that Lu might suffer persecution as a result of his Chinese ethnicity.

In Gov's case the delegate used language along the same lines as the Lu delegate except that he also found that "there is not a real chance that the applicant would be persecuted for reasons of 'race' on his return to Cambodia".  Otherwise what I have said in relation to Lu applies to Gov.

In Ung's case the delegate's language was along the same lines as that in Lu's case, except that there is no reference to classification 351.  What I have said about Lu applies to Ung.

In all three cases, it seems to me that under the banner "error of law" the applicants are really saying that the delegate should have acted upon the Shoesmith paper rather than the
more recent DFAT assessment.  That the delegate did not do as the applicants would have wished in this regard is not an error of law.

(c)        Lu and Gov : Conscription/forced labour

Error of law was also asserted in relation to Lu's and Gov's fears of conscription and forced labour.  The Lu delegate accepted that due to his ethnicity Lu was required to undertake military training and active duty against the Khmer Rouge during the period 1990 to 1991, but found that his fears were not well-founded "as conscription/forced labour are no longer applied".  This conclusion was based on DFAT's assessment to this effect.  The complaint here is that the delegate did not address the "real chance" issue.  It is true that the delegate did not use those words, but as I have said in another connection, the delegate's use of the words on several other occasions makes clear that when she said that a fear was not well-founded, she was to be understood as saying that it was not well-founded because there was no real chance of persecution.  The Gov delegate used similar language to the Lu delegate, save that he added that there was "not a real chance that the applicant would be persecuted for reasons of 'race' on his return".  In neither case did the delegate, in my view, fail to apply the real chance test, i.e. the "possibility" rather than "probability" test.

(d)        Lu and Ung : Hun Sen

Another error of law was asserted in relation to the delegates' treatment of Lu's and Ung's fear of Hun Sen forces.  In relation to Lu, having said that Lu's fear was due to his publicly expressed disapproval of the Hun Sen government and his witnessing of its harsh treatment of others, the delegate said that the fears were not well-founded as Hun Sen was a party to the peace process and was complying with that process.  The complaint is that the delegate
did not ask the "real chance" question.  It is true that the delegate did not use those words in relation to Hun Sen.  But elsewhere in his reasons, including under the heading "Political opinion" where the Hun Sen fear was dealt with, the delegate did ask that question, and there is no doubt that she was aware of the proper test, and that when she said that Lu's fear of persecution by Hun Sen was not well founded, she meant that it was not well-founded because there was no real chance of it occurring.  The Ung delegate used the same language as the Lu delegate, and what I have said about Lu applies to Ung.  As I have said elsewhere, the delegates' understanding of the "real chance" test did not involve a refusal to look into the reasonably foreseeable future, and accordingly the Lu and Gov delegates did not fail to assess the possibility that Hun Sen would persecute returnees such as Lu and Gov.

(e)        Lu and Gov : right to work

In dealing with Lu's ethnicity claim in relation to employment difficulties, the delegate said that Lu had been able to earn a livelihood from his long-term employment with the port authority, and therefore his claim did not establish persecution.  In dealing with Gov's ethnicity claim in relation to employment, the delegate said that he was able to operate a business selling rice, sugar and fish, and that ethnic Chinese were active in the workforce, at least in the commercial sector.  The same complaint is made of each delegate's approach.  In Lu's case it is said that the finding that Lu was able to secure employment prior to leaving Cambodia did not deal with whether there was a real chance of Lu being subject to persecution on the basis of his Chinese ethnicity.  In Gov's case it is said that in taking into account Gov's ability to operate a business, the delegate failed to deal with the real chance issue.

Taken in isolation, the Lu delegate's statement that Lu's claim "does not establish persecution" does not sound like a finding on a "real chance question".  However, the delegate was aware that the "real chance" test was the one to be applied, having on several occasions rendered the statutory formula - "well-founded fear" - in the "real chance" terms directed by the High Court.  Taking her reasons as a whole, and giving them a beneficial construction, as directed by Wu's Case, I do not think there was a failure to apply the proper test.

In the case of the Gov delegate the complaint isolates one sentence from a composite paragraph dealing with Gov's personal (i.e. non-official) ethnic claims, and subjects it to scrutiny out of context.  At the conclusion of the paragraph, having earlier found that Gov was able to reach a reasonable standard of education, that he was able to operate a business, and that conscription/forced labour were no longer applied, the delegate summarised the position by saying "Overall, I find the applicant's claims to fear persecution for the Convention reason of 'race' are not well-founded".  And then, rendering "well-founded" in "real chance" language, he said: "I find that there is not a real chance that the applicant would be persecuted for reasons of "race" on his return to Cambodia".  The complaints about the approaches of the two delegates in this connection are thus without substance.

(f)         Lu, Gov and Ung : religion

Error of law was urged in relation to the claims of Lu, Gov and Ung that there was a real chance of persecution on the ground of religion.  I do not think there was any factual basis for Ung's claim.  The material before the delegate was that Ung did not practise any Chinese customs or religion.  She was not taught the Chinese religion, "but may be
Buddhist".  On the assumption, however, that she may want to practise the Chinese religion on her return, the delegate said that there was not a real chance of persecution because the material showed that steps had been taken to ease long standing restrictions on religion, and that there are Chinese temples and official tolerance of Chinese Buddhist activities and the Chinese New Year.  Error of law is alleged in reliance on the following passage from the judgment of Sheppard J. in Mok:

                ... nor do I understand why a restriction on the right to practise a religion as distinguished from forbidding the practice of it altogether does not itself constitute persecution or may not constitute persecution in a given set of circumstances.  There is no indication that [the delegate] considered these matters at all.  His reasons consist of assertions in the form of findings.  But findings are made in the context of ascertaining what has occurred in the past and what is likely to be a particular state of affairs in the future on a balance of probabilities.  It is not the assessment of the real chance of something that has occurred or may occur in the future.  [The delegate] did not turn his mind to these problems in the remarks he made concerning the practice of Ms. Mok's religion.

In contrast with with the situation in Mok, the Ung delegate did make an assessment of the  "real chance" of persecution occurring.  He referred to the "real chance" test, and did not use  phrases such as "gave greater weight to" which led the court in Mok to conclude that the delegate had applied the balance of probabilities test.

As I have said earlier, Gov did not really care about practising his Chinese religion or customs, and there was no factual basis for his claim of feared persecution.  Otherwise what I have said about Ung applies to him.  Lu says that he cannot speak Chinese, and not being able to practise the Chinese religion does not worry him because he is not very religious. 
There was thus no factual basis for a claim of feared persecution on this ground.  Otherwise what I have said about Ung applies to Lu.

(g)        Khmer Rouge

Dealing with the applicants' fear of mistreatment at the hands of the Khmer Rouge, each delegate said while the Khmer Rouge was still active, its activity was limited to certain geographical areas, and that when the applicant was returned to Cambodia he would be sent to an area where there was no Khmer Rouge activity.  The applicants contend that the delegates failed to consider the possibility that, upon arrival in Cambodia, they would be directed by the government to live in a Khmer Rouge area.  They rely on a passage from DFAT, which I have set out above, to the effect that the Australian Government had no control over the location in which a returnee would settle; this would be a matter for the returnee, UNHCR and the SNC.  If, as seemed most likely, they returned to their former homes in urban areas such as Phnom Penh or Kompong Som, there was nothing to suggest they would be in danger from the Khmer Rouge.  It was a principle of the comprehensive settlement that nobody would be forced to return to areas which were judged unstable or unsafe.  This passage from DFAT does not assist the applicants.  What each delegate was required to do in the present context was to determine whether there was a real chance that the applicant would face persecution by the Khmer Rouge.  For the purposes of the present argument, that would depend on the area in which he or she ended up on return.  The whole burden of each delegate's determination was to assess the possibility of the applicant's ending up in Khmer Rouge controlled areas.  Because of the policy that nobody would be repatriated to areas where the Khmer Rouge was active, each delegate found that there was
no real chance of persecution at the hands of the Khmer Rouge.  The applicants relied on a passage in Mok where Sheppard J. said:

                One of the matters about which [the delegate] seems to have been satisfied was that, whatever problems remained in Cambodia as a consequence of the presence of the Khmer Rouge in certain areas, those problems did not exist in Phnom Penh where he seemed certain that Ms. Mok would go.  It was for this reason that in par.4.2.3 [the delegate] said he thought irrelevant Dr. Shoesmith's statement that Chinese Cambodians living outside Phnom Penh would still face particular risks from the Khmer Rouge.  What he did not assess was the chance that she might have to live outside the capital because she was compelled to do so.

What the delegate said in par.4.2.3 was this:

                I did not consider Dr. Shoesmith's statement that Chinese Cambodians living outside the capital city still face particular risks from the KR ..., 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.

Later, in a passage quoted by Sheppard J., the delegate said:

                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 KR is not well-founded.

As I have said before, the delegate in Mok did not refer to the "real chance" concept, and used language which indicated that he was not concerned with an assessment of possibilities as opposed to probabilities.  Consistently with that, he said that Khmer Rouge activity
outside Phnom Penh was irrelevant, because Mok would be living in Phnom Penh.  In the present cases, however, each delegate expressly adverts to the possibility that the applicant might live outside the safe areas, and discards it on the basis of the UNHCR policy of not sending returnees to Khmer Rouge areas.  Each delegate then states that, for that reason, there is no real chance of persecution at the hands of the Khmer Rouge.

RELEVANT CONSIDERATIONS

In Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 C.L.R. 24, at pp.39-40 Mason J. said:

                (a)              The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ....

                (b)              What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion ....

                (c)              Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ....

                (d)              The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind.  It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator ....

Under the three following sub-headings I deal with grounds of review that are common to all applicants.

(a)        Khmer Rouge activity

The applicants contended that the delegates had ignored the range of Khmer Rouge activity in making their determinations.  It was said that there was no mention in their reasons of parts of the Shoesmith paper, the Echo and George submissions, the Asia Watch Report and various newspaper articles, dealing with that topic.  These sources provide evidence that the Khmer Rouge has refused to disarm and operates as a military force, that it is intentionally delaying implementation of the UNTAC programme to consolidate its hold on contested rural areas and undermine the capacity of the Phnom Penh regime to survive the transition period intact, that it was able to move through countryside, occupying even provincial towns for days at a time, that some four months after the Paris accords, the Khmer Rouge had given no indication that it was prepared to surrender its military capacity to resume the armed struggle, that the Khmer Rouge has a share in government power and can operate freely in Phnom Penh and elsewhere in Cambodia, that it has a political and military presence in the south, north and west of the country, that it employs terrorist techniques in infiltrating villages, and that it proposes to exploit the peace plan to its own ends and open up a battle field in Phnom Penh as a first step to seizing power.  It was submitted that the delegates' failure to mention these matters showed that they had ignored relevant considerations, because the matters bore on the applicants' apprehension that they may on their return suffer at the hands of the Khmer Rouge.  There seems to me to be a basic error in the way in which the applicants put their case on the alleged failure of the delegates to take relevant considerations into account.  They fail to distinguish between evidentiary considerations on the one hand and considerations which, on a proper construction of the legislation, the delegates must take into account.  In Li Shi Peng v. Minister (1994) 35 A.L.D. 225 the Full Court rejected a claim that the delegate was obliged to refer to and take
into account certain cables from DFAT.  Carr J., with whom Sheppard and Gummow JJ. agreed, said:

                In my view, the submission confuses taking into account relevant considerations with taking into account particular pieces of evidence.  The relevant consideration which the respondent was obliged to take into account was - what might happen to the appellants if they are returned to China?  It is quite clear that the respondent's delegate did take that consideration into account ....

The relevant consideration which each delegate was bound to take into account under s.22AA was what might happen to the applicant in the foreseeable future if returned to Cambodia.  None of the delegates failed to take this consideration into account.  They had before them apparently reliable information in the form of the DFAT assessment that while the Khmer Rouge was still active, its activity was limited to certain geographical areas, and that if the applicants were returned it would be to a part of Cambodia where there was no Khmer Rouge activity.  To act on that material rather than the material stressed by the applicants that the Khmer Rouge was capable of expanding the areas under its control, was not a failure to have regard to a relevant consideration.  In Lek v. Minister for Immigration and Ethnic Affairs (1993) 43 F.C.R. 100 the applicant relied on the Shoesmith paper dealing with Khmer Rouge activity in support of his fear that he might be persecuted on his return.  The material before Wilcox J. included the DFAT assessment and the Shoesmith paper.  After setting out passages from DFAT relating to the extent of Khmer Rouge activity and the policy of not returning anyone to areas controlled by the Khmer Rouge, his Honour quoted the delegate's determination on the Khmer Rouge (which was in substantially the same terms as the determinations in question here) and said:

                The correctness of [the delegate's] factual findings on Chinese ethnicity, or on any other subject, is not a matter for me.  His decision is reviewable in this Court only on legal grounds.  But ... it should be said that [the delegate's] findings, in relation to ... the prospect of persecution by the Khmer Rouge, were well open to him.  They were amply supported by the DFAT report.

(b)        Qualifications and reservations in DFAT

It is contended that the delegates failed to take into account the reservations and qualifications contained in the DFAT report, and rendered the effect of the report as if the views contained in it were absolute and unqualified.  For example, it was said that the delegates did not state that the assessment said that the situation in Cambodia remained extremely fluid, that DFAT had a cautious but basically optimistic view on the prospects of stability and respect for human rights in Cambodia, that a dogmatic assertion of the inevitability of the settlement being brought to a successful conclusion cannot be judged, and that the Khmer Rouge had committed ceasefire violations and would have to be carefully watched.  In my view the delegates were not obliged to record verbatim the material before them.  They were entitled to render the substantial effect of DFAT's assessment of the position, and the fact that they did not in their reasons advert to the qualifications and reservations of the assessment does not involve a failure to take into account relevant considerations.

(c)        Contradictions between Shoesmith and DFAT

The applicants' contention here is that the delegates failed to take into account material that contradicted the DFAT assessment on the current situation in Cambodia.  For example, the assessment made certain findings about the current state of Khmer Rouge activity, human rights abuses and the ethnic Chinese.  It is said that these findings are not supported in the
Shoesmith paper, the Echo and George submissions and the Asia Watch Report.  Shoesmith is indeed more pessimistic in his assessment of the position.  But the delegates were entitled to take into account that he is avowedly partisan, and an advocate for the applicants' refugee status.  More importantly, the delegates had before them in DFAT's assessment material which supported their conclusion.  As updated to 4 December 1992, the assessment was more current than the Shoesmith paper, the submissions or the Report.  I have already referred to Wilcox J.'s decision in Lek that the delegate's findings on the prospect of persecution by the Khmer Rouge was "amply supported by the DFAT report".  That case also concerned a claim based on Chinese ethnicity.  Wilcox J. first set out passages from the Shoesmith paper dealing with the persecution of ethnic Chinese - the number who had perished between 1975 and 1978, that they were targeted because they were the class enemy rather than because of their race, and that while there had been relaxations of restrictions, ethnic Chinese still face risks outside the capital cities.  His Honour then set out passages from DFAT's assessment - early discrimination, classification 351, increasing tolerance since 1985, and no evidence of persecution in recent years.  His Honour set out the delegate's findings on ethnicity (which were in much the same terms as those in Lu's, Gov's and Ung's cases), and said that those findings "in relation to ... ordinance 351 ... were well open to him.  They were amply supported by the DFAT report."

(d)        Benefit of the doubt

The applicants submitted that where, as in the present cases, there is conflicting material before the delegates, or insufficient material to make out a case, it is an error of law for the applicants not to be given the benefit of the doubt.  This was said to be a failure to take a relevant consideration into account.  The "benefit of the doubt" notion derives from a Handbook on Procedures and Criteria for Determining Refugee Status issued by UNHCR.  At page 48 it is said:

                After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements.  ... it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised.  It is therefore frequently necessary to give the applicant the benefit of the doubt.

I need not explore whether this passage is directed to a case such as the present, because the "benefit of the doubt" principle is not a matter the delegates were required to take into account.  Cf. Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 C.L.R., at p.39.  In the Chan Case, at p.392 Mason C.J. said:

                ... I have not found the Handbook ... especially useful in the interpretation of the definition of "refugee".  Without wishing to deny the usefulness or the admissibility of extrinsic materials of this kind in deciding questions as to the content of concepts of customary international law and as to the meaning of provisions of treaties ..., I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention.

PARTICULAR GROUNDS

Apart from the general grounds applicable to all cases, it was claimed that each delegate had failed to have regard to particular relevant considerations in the case of each applicant.  In Chheng's case they were

(a)        that the United Nations was unable to verify the total withdrawal from Cambodia of Vietnamese troops and military advisers;

(b)        that Chheng was never charged, tried or convicted of any military offence when arrested, detained and tortured during the Heng Samn regime;

(c)        that Chheng's solitary confinement, interrogation and torture were to illicit a confession that he was a Khmer Rouge supporter and not that he was guilty of a military offence;

(d)        that Chheng had seen people arrested for trying to leave Cambodia.

I refer to what I have said above about the distinction between items of evidence going to the situation in Cambodia and an applicant's concern about his fate on return on the one hand, and the question of what might happen to the applicant if returned, on the other.  The complaints noted above fall into the former class.  Cf. Li Shi Peng's Case.

In Lu's case the delegate is said to have failed to have regard to the fact that there was still a Vietnamese political presence in Cambodia, other than an official Vietnamese presence.  This too is a matter of evidence only.

In Ung's case the delegate is said to have failed to have regard to the fact that a boat registered in Ung's fiancé's name was used to assist Vietnamese and ethnic Chinese escape from Cambodia and that therefore Ung, by reason of her connection with Gov, would be identified as associated with effecting the illegal departure of boat escapees.  This too is a matter of evidence only.

UNREASONABLENESS

Section 5(2) of the ADJR Act provides that a reference in sub-s.(1)(e) to an improper exercise of power is to be construed as including a reference to an exercise of a power that is so unreasonable that no reasonable person could have so exercised it.  This ground of review reflects the position at common law.  See Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223.  A decision may be unreasonable if the decision-maker has given inadequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance: Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 162 C.L.R., at p.41; Western Television Ltd. v. Australian Broadcasting Tribunal (1986) 12 F.C.R. 414, at pp.434-435.  In Taveli v. The Minister (1989) 86 A.L.R. 435, at p.453-454 Wilcox J. said:

                In numerous cases the comment has been made that unreasonableness ... is a difficult ground to establish.  Probably the ground has its most frequent application in cases in which the challenger can demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria.  ...  There may be cases - although I think that they are likely to be rare - in which all of the factors germane to a particular decision point in one direction.  If such a case arose, it would seem proper to brand as unreasonable a decision to the contrary effect.  But ordinarily there will be features pointing in each direction.  Where that is the situation, the weight of these factors is a matter for evaluation by the decision-maker.  In such a case, even though a particular judge might feel that the preferable decision would have been otherwise, that feeling would not be sufficient to justify the condemnation of the decision as unreasonable, in the relevant sense.

                ...

                In the present case there were considerations pointing in each direction in relation to the decision facing [the delegate].  Notwithstanding the obvious weight of the considerations favouring decisions to the opposite effect of those made, it cannot be said that the decisions which were made were so unreasonable that no reasonable person could have made them.

The four Applications rely on a wide range of grievances under the "unreasonableness" head.  But counsel pursued only the selected grounds appearing in their written submissions.  Accordingly, I will deal with those grounds only.

Chheng

It was contended for Chheng on the unreasonableness ground that the delegate:

(a)        failed to give sufficient weight to the imprisonment, torture and mistreatment he had suffered;

(b)        failed to give sufficient weight to his imputed political profile as a Khmer Rouge supporter;

(c)        gave excessive weight to the assumption that many returnees have been military deserters;

(d)        gave insufficient weight to the contents of the Echo and George submissions;

(e)        gave excessive weight to the location in Cambodia to which it was thought that Chheng would be sent were he to return;

(f)         gave excessive weight to the absence of evidence relating to involuntary return in the current political climate in Cambodia.

As to ground (a), the delegate not only set out the relevant facts, but assessed them in the "real chance" context and came to a negative conclusion.  Apart from the applicant's own material, the delegate had before him evidence that over 100,000 Cambodians had been repatriated and there had been no reports of human rights violations with respect to them, that voluntary returnees from Australia had not been mistreated upon their return, that the peace accords provided that returnees will not be persecuted or discriminated against, that the Hun Sen regime was a party to the peace process and was complying with the process, and that there was no longer a Vietnamese military presence in Cambodia.  Accordingly, there were factors strongly pointing in favour of the decision to which the delegate came, and his decision cannot therefore be attacked as unreasonable.  See Taveli's Case.  The same applies to ground (b).  As I have said in relation to ground (a), there was material before the delegate that the Hun Sen regime was complying with the peace process and there was no longer a Vietnamese military presence in Cambodia.  The delegate was entitled to act on that material without his decision being impugned as unreasonable.  As to ground (d), the delegate had the submissions before him and referred to them as matters to which he had regard.  But he also had before him the DFAT assessment, and, as was said in Taveli, the weight to be given to competing considerations is a matter for the delegate.  In this connection it is to be remembered that the Echo and George submissions were not objective
reports, but were made by those seeking to assist the applicants and others.  The excessive weight grounds also fail the test.  It is true, as was said in Peko Wallsend and Western Television, that unreasonableness can be constituted by giving excessive weight to a relevant factor of no great importance.  But as to ground (e), the location in Cambodia to which Chheng would be sent were he to return is on no view a fact of no great importance.  This ground is no more than an attack on the merits of the delegate's decision.  As to ground (f), again the absence of evidence of mistreatment of involuntary refugees cannot be described as a matter of no great importance.  It is central to the very question for the delegate's decision.  Ground (c) is in the same position.  The delegate is dealing with Chheng's fear that upon his return he might suffer punishment for having deserted.  For the delegate to say that the material before him justified an assumption that other returned deserters had not been punished was central to properly dealing with Chheng's submission that there was a real chance of persecution if he returned.  Again, though employing the language of "unreasonableness", the contention is really an attempt to secure a review on the merits.

Ung

Ung's unreasonableness grounds are that the delegate:

(a)        placed excessive weight on the absence of evidence relating to involuntary return in the current political climate in Cambodia;

(b)        placed excessive weight on evidence of alleged tolerance of Chinese cultural activities within the community in Cambodia;

(c)        placed excessive weight on evidence of Chinese involvement in the commercial sector in Cambodia;

(d)        placed insufficient weight on whether Ung feared persecution on the grounds of racial prejudice (in light of the fact that the adverse treatment of Ung and her family by the Khmer Rouge may have been due to their Chinese ethnicity);

(e)        placed excessive weight on evidence of the existence of Chinese temples and tolerance of Chinese Buddhist activities and Chinese New Year in Cambodia.

I have covered ground (a) when dealing with Chheng.  The other grounds all boil down to the delegate's acceptance of the material in the DFAT assessment rather than the more pessimistic material in the Shoesmith paper, the George and Echo submissions and the Asia Walch Report.  I have dealt with this earlier in these reasons.  Again, all the "excessive weight" grounds fail to meet the relevant test.  Did the delegate in placing weight on the matters mentioned in grounds (b), (c) and (e) attach that weight to unimportant factors?  Granted that Ung's claim is of a well founded fear of persecution on the ground of her race, the factors relied on by the delegate, far from being unimportant, all relate to the increased tolerance afforded to ethnic Chinese, factors central to a proper assessment of the claim of feared racial prejudice.  Ground (d), though not an "excessive weight" ground, is in the same position.  The delegate was entitled to conclude on the basis of the DFAT assessment that changed circumstances in Cambodia had removed the basis for a fear of persecution on the ground of race.  See Lek's Case (1993) 43 F.C.R., at p.115.

Gov

Gov's unreasonableness grounds are that the delegate:

(a)        gave excessive weight to a provision of the Peace Agreement to the effect that returnees will not be subject to persecution on account of their departure from Cambodia;

(b)        placed excessive weight on the absence of evidence relating to involuntary return in the current political climate in Cambodia;

(c)        placed excessive weight on the assertion that there was no longer any continuing Vietnamese military presence in Cambodia;

(d)        placed insufficient weight on whether Gov feared persecution on the ground of racial prejudice (in light of the fact that the adverse treatment of Gov and his family by the Khmer Rouge may have been due to their Chinese ethnicity);

(e)        placed insufficient weight on the fact that Gov and his family were classified "351" after the Hun Sen regime came to power.

I have dealt with ground (b) when dealing with Chheng, and with ground (d) when dealing with Ung.  As to ground (a), the existence of the Peace Agreement was clearly a relevant factor in assessing Gov's claim of feared persecution on the ground of his illegal departure.  The weight to attach it to was for the delegate to decide.  Gov contends that insufficient weight was given to the possibility that the Agreement might not be complied with.  But the delegate recited UNHCR's advice that over 100,000 Cambodians had been repatriated from border camps and that there had been no reports of human rights violations with respect to them, and evidence that voluntary returnees from Australia had not experienced any adverse treatment upon their return.  As to ground (e), the DFAT assessment amply justified the delegate's finding.  Cf. Lek's Case at p.115.  As to ground (c), the DFAT assessment justified the finding that there was no longer an official Vietnamese presence in Cambodia.  That there was no such presence was clearly not a matter of little importance to an assessment of Gov's fear of persecution on the basis of his involvement in assisting persons to escape from Vietnam.

Lu

Lu's unreasonableness grounds are that the delegate:

(a)        placed excessive weight on the assertion that there is no longer any continuing Vietnamese presence in Cambodia;

(b)        placed excessive weight on the absence of evidence relating to involuntary return in the current political climate in Cambodia;

(c)        placed insufficient weight on the fact that Lu was classified "351" after the Hun Sen regime came to power;

(d)        unreasonably found that Lu did not have a well-founded fear of persecution by the Khmer Rouge (in light of the adverse treatment of his family by the Khmer Rouge);

(e)        placed insufficient weight on the fact that in 1988 Lu was arrested by the police, forced to sign a confession and required to undertake re-education by the police.

I have dealt with grounds (a), (b), (c) and (d) in what I have said about the other applicants' grounds.  As to ground (e), the delegate gave no weight to the 1988 incident when Lu was accused of stealing, because the incident related to a criminal matter which was not a Convention reason.  I think the delegate correctly so decided.

CONCLUSION

None of the grounds relied on by the applicants has been made out, and each Application is dismissed.

                                                                                    I certify that this and the preceding 62 pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg

                                                                                    .....................................................

                                                                                                Associate

                                                                                                31 August 1995

Counsel for the Applicants:                                D J Habersberger QC and M Kennedy

Solicitors for the Applicants:                              Clayton Utz

Counsel for the Respondent:                             R R S Tracey QC and A Cavanough

Solicitors for the Respondent:                Australian Government Solicitor

Date of Hearing:                                   20-24 July 1995

Place of Hearing:                                  Melbourne

Date of Judgment:                                             31 August 1995