On May 2, the Full Federal Court has set aside a decision of the Refugee Review Tribunal that East Timorese refugee, Jong Kim Koe, was not a refugee under the international Refugees Convention to which Australia is a party. The Tribunal will now need to re-hear the case.
The Tribunal had earlier found that Mr Jong would face a real chance of persecution in Indonesia on account of his political opinion. The Tribunal found, however, that Mr Jong had dual nationality, namely, Portuguese citizenship as well as Indonesian citizenship. Under international refugee conventions somebody with dual cirizenship must face a chance of persecution in both countries in which he/she has citizenship, not just one, before they can be regarded under the conventions as a refugee.
According to the summary of the Federal Court's decision which it issued on May 2, the Federal Court decided that the Tribunal had made an error of law in that it had considered only the formal fact of Mr Jong's Portugeuse citizenship and did not consider the "effectiveness of the protection available to the person by the country of his second nationality, in this case Portugal". According to the summary, "The effectiveness of protection has to be considered as a practical matter in the light of all the circumstances of a particular case. The Court has held that the Tribunal did not do this in the present matter,...".
Kim Koe arrived in Australia in March 1992 having decided to leave East Timor following his involvement, along with his brother Kim Li, in the protests in Dili on November 12 which were attacked by the Indonesian military. The attack resulted in the infamous Santa Cruz massacre of over 270 East Timorese. Kim Koe's mother tongue is Tetum, the language of East Timor. He was two years old when the Portugeuse poresence ended in East Timor. he does not speak Portugeuese and has no connections with Portugal. he has four siblings resident in Australia. The Portuguese government itself has it made it clear that it will not accept East Timorese deported to Portugal against their will.