Garate (Gabriel Sequeiros) v. Refugee Status Appeals Authority

High Court Auckland M826/97; [1998] NZAR 241
25 September 1997; 9 October 1997
Williams J

Refugee definition - Exclusion - Article 1F(a) - Standard of proof under Article 1F(a) whether membership of a group without more sufficient under Article 1F(a)

Judicial review - Nature of judicial review

Judicial review - Whether RSAA entitled to take into account country information

Judicial review -  Inclusion of claimant's family in refugee application form - Misleading nature of refugee application form

Judicial review - Legitimate expectation of the claimant's family

In 1992 Mrs Sequeiros, a citizen of Peru, arrived in New Zealand and applied for refugee status but later withdrew the application and returned to Chile. While in New Zealand she gave birth to a son. In 1994 Mr Sequeiros, a citizen of Peru, arrived in New Zealand with his family but he alone applied for refugee status. When that application was declined Mr Sequeiros appealed to the Refugee Status Appeals Authority (RSAA). In 1997 the appeal was dismissed, the RSAA holding that Mr Sequeiros was excluded from the protection of the Refugee Convention under Article 1F(a) as there were serious reasons for considering that he had committed crimes against humanity while working as a police officer in Peru. The plaintiffs (Mr and Mrs Sequeiros) sought judicial review of the decision of the RSAA.  The complaint of Mrs Sequeiros was that she had a legitimate expectation that she and the children would be considered in any decision relating to her husband, and that they would not be denied refugee status if found to have a well-founded fear of persecution for a Convention reason.  The RSAA, in its decision had determined only the refugee status of Mr Sequeiros.

Held:

1    An application for judicial review of a decision of the RSAA is not in any sense an appeal from the decision of the RSAA (see para [27] and [1998] NZAR 241, 247).

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J); Refugee Appeal No. 523/92 Re RS (17 March 1995) discussed.

2    The RSAA was entitled to take account of the various publications to which it referred in its decision in assessing the country information concerning Peru. The RSAA having had the advantage of seeing and hearing the witnesses, had clearly balanced this information against its other findings, especially the finding on Mr Sequeiros' credibility, and was entitled to balance conflicting pieces of evidence (see para [29] and [1998] NZAR 241, 247).

Sivakumar v Canada (Minister of Employment and Immigration) [1994] 1 FC 433 (FC:CA); Refugee Appeal No. 1249/93 Re TP (31 July 1995) discussed.

3    The admitted actions of Mr Sequeiros plainly came within the definition of crimes against humanity  (see para [35] and [1998] NZAR 241, 248)

Refugee Appeal No. 1249/93 Re TP (31 July 1995) discussed.

4    The test of "serious reasons for considering" that an individual has been guilty of crimes against humanity is a lower standard of proof than the balance of probabilities.  That standard of proof only comes into play, however, when the decision-maker is considering determinations of fact.  There was nothing in the decision of the RSAA to suggest that it did not correctly apply the required standard of proof and the correct approach to interpretation (see para [38] and [1998] NZAR 241, 248).

Refugee Appeal No. 1249/93 Re TP (31 July 1995) approved.

5    Membership of an organization which from time to time commits international offences would not normally be sufficient to exclude a person from refugee status.  However, where an organization is principally directed to a limited, brutal purpose, such as secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.  Frequent participation in such acts is unnecessary as Article 1F(a) only speaks of a crime against humanity in the singular (see para [39] and [1998] NZAR 241, 248-249).

Ramirez v Minister of Employment and Immigration [1992] 2 FC 306 (FC:CA); Equizabal v Canada (Minister of Employment and Immigration) (1994) 24 Imm LR (2d) 277 (FC:CA) followed and applied.

6    The case presented to the RSAA was plainly an application by Mr Sequeiros alone. His refugee status application form contained no statement of matters unique to the position of his wife. Mrs Sequeiros must have been aware of the necessity for a separate application given her application in 1992, and her subsequent withdrawal of that application.  The position of Mrs Sequeiros was not stated separately in the refugee application. The application form filled in by Mr Sequeiros contained no provision for the recording of statements relevant to the separate circumstances of Mr Sequeiros' family. The content of the form should be reconsidered to provide for this, and as well should expressly refer to the principle of family unity and the possibility of exclusion.  Even if Mr and Mrs Sequeiros were misled by the form it was clear on the evidence that any misconception had disappeared by the time they prepared for the hearing (see para [44] and [1998] NZAR 241, 249-250).

7    There was no unambiguous express promise or representation to found a legitimate expectation that Mr Sequeiros' family would be granted refugee status if Mr Sequeiros could establish a well-founded fear of persecution. If the misleading nature of the refugee application form raised any legitimate expectation this was not pursued at the RSAA hearing. Mrs Sequeiros had subsequent to the RSAA decision filed her own refugee application, showing an intention to pursue her legal rights and claim to refugee status separately (see para [48] and [1998] NZAR 241, 250).

Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135 (CA); R v Secretary of State for the Home Department, Ex parte Islam [1990] Imm AR 220 (QBD) discussed.

Application dismissed

Other cases mentioned in judgment:

Refugee Appeal No. 1655/90 Re MSI (23 November 1995)
Sivakumar v Canada (Minister of Employment and Immigration) [1994] 1 FC 433 (FC:CA)

Counsel
A Chauca for the plaintiffs
M Woolford for the defendants

WILLIAMS J [1] This is an application brought by Mr and Mrs Sequeiros and their family for judicial review of the decision of the Refugee Status Appeals Authority delivered on 6 March 1997 declining an application for refugee status. The application for judicial review was based on a claim that the Authority failed to take relevant considerations into account in assessing the application or breached Mrs Sequeiros' legitimate expectation. A further cause of action based on unreasonableness was abandoned at the hearing.

[2] Mr and Mrs Sequeiros are Peruvian. They have two natural children now aged 7 and 5 respectively. The 5-year-old was born in New Zealand when Mrs Sequeiros was in this country, temporarily between April and May 1992. There is a third child who is actually Mrs Sequeiros' brother but whom she has either adopted or has guardianship. He arrived in New Zealand on 23 December 1995, some 15 months after the family's arrival on 15 September 1994.

[3] An application for refugee status was filed with the New Zealand Immigration Service on 27 September 1994 but, on 28 November 1995, the Service declined that application.

[4] An appeal against that decision was heard by the Authority on 28 March and 2 May 1996 and in its decision delivered on 6 March 1997 the Authority found that refugee status was made out but held that Mr Sequeiros was excluded from the benefits of the UN Convention on the Status of Refugees by virtue of Art. 1F(a). Broadly put, it found that he had committed crimes against humanity.

[5] It is common ground that those decisions related to Mr Sequeiros alone. It will be necessary in the course of this judgment to consider the position of Mrs Sequeiros and the children and to decide whether and to what extent they were included in the application and the decision.

[6] As the Authority found that refugee status had been established and that finding was not challenged in this proceeding, the background can be considered reasonably briefly.

[7] After graduating from the Peruvian Police School Mr Sequeiros commenced active service in Lima in 1989. Two years later he and the squad of which he was a member received a police commendation in relation to the capture of some bank robbers.

[8] In April 1991 he was transferred to the anti-terrorism division where his work was largely involved in the investigation and the prosecution of the Sendero Luminoso or "Shining Path" guerrillas. In order to gain promotion he was transferred to an "emergency area" in a rural city. The city was under Army control but because the Army had no powers of investigation and interrogation it handed those whom it had arrested over to the police for that purpose. In addition, the police endeavoured to gain intelligence about the group and to infiltrate it by working undercover. Mr Sequeiros was involved in this work. Despite the fact that he and his fellow-officers worked in plainclothes, their small number meant that they became known to members of Sendero Luminoso.

[9] Mr Sequeiros conducted interrogations himself, sometimes with colleagues. During the first day of the hearing before the Authority, Mr Sequeiros acknowledged commencing his interrogations by "stripping" the suspect, by "try to dominate the arrested person" and "break their emotional balance". He said that he handcuffed them, blindfolded them and made them kneel. If they failed to give him information he gaoled them or applied techniques to them "similar to the Nazi techniques". He said that "we call it the third degree ... a kind of torture that doesn't leave any signs on the body". He said that he "fastened them to a piece of timber" and then did a "kind of savage interrogation". He dipped their heads in water or lifted them up by the arms bound at the back where the "pain is unbearable". He acknowledged seeking authority from his commandant to use physical force but disregarding that direction if he thought it wrong, including the directions of commandants who would not authorise the use of force. He acknowledged using force perhaps three times in his eight months in the posting. He said that force was usually unnecessary as advising the suspects as to what would happen and preparing them for it was sufficient. He arrested some 30-40 people during his period in the emergency area.

[10] Corroborative evidence was given by his brother as to the Police approach to Shining Path suspects. He is now a New Zealand resident but was formerly a member of the Peruvian Police.

[11] Towards the end of the first day of hearing, members of the Authority raised with Mr Sequeiros and his counsel the possibility that the exclusion Art. 1F(a) might apply to his actions.

[12] His work as a policeman was re-visited on the second day of the hearing, no doubt as a result of the Tribunal raising that possibility. He repeated the details he had earlier given about his intelligence-gathering activities but when it came to the interrogations he said that stripping the suspects was not invariable, handcuffing and blindfolding was used only when it was absolutely necessary and that, when force was necessary (p 132):

"with my helpers [we'd] tie up against a piece of timber and we just wet the face and that was enough. Logically, the delinquent is going to think that you are going to drown him or hurt him. But that is only what he thinks .... It wasn't a torture. You don't want to take that risk to the person suffering. Three minutes of interrogation and that was that."

[14] As a result of his wife's fears following that attack, she came to New Zealand with their daughter on 14 April 1992. She was pregnant with their son. He was born in this country four days later. She sought refugee status. On 26 May 1992 she withdrew that application and returned to Chile and was reunited with her husband who had crossed the  border.

[15] On 4 June 1994 Mr Sequeiros was the subject of another attack. Between his wife's return and that date he had received either personally or through his parents a number of threatening phone calls from the Sendero Luminoso. He had also travelled to Miami, USA, in April 1993 for an unsuccessful operation on his eye. He had applied unsuccessfully to be permitted to resign from the police on several occasions.

[16] In the 4 June 1994 incident he delivered his wife and children to his parents' home but as he was returning to his car, saw two men approaching him, whom he believed to be Sendero Luminoso. They produced handguns and started shooting at him as he endeavoured to drive away. There were a number of bullet holes in his car. He suffered a bullet wound in his thigh before firing back.

[17] Mr Sequeiros was then permitted to resign from the Police and he and the family travelled to New Zealand travelling on a visa obtained from the British Embassy in the United States.
 
[18] The Authority first assessed Mr Sequeiros' credibility, resolving certain contradictions in the evidence by giving him the benefit of the doubt. It noted the difference in his evidence between the first and second day of the hearing, once the Authority had raised of the possibility that Art. 1F(a) might be relevant. It held that he was not entirely truthful and had endeavoured to distance himself on the second day from activities which he had freely acknowledged on the first and concluded (p 15):

"We accept therefore that the appellant does have a genuine subjective fear. The Authority accepts that the appellant has already suffered two major injuries from the encounters with the Sendero Luminoso and that he now fears death at their hands if he was to return to Peru. In terms of his evidence of what interrogation techniques he employed whilst working in H, however, we are not willing to accept that the appellant had merely threatened to apply torture, but in fact carried out third degree torture techniques on terrorist suspects, in the ordinary course of police business."

[20] Turning to whether there was a real chance of Mr Sequeiros being persecuted if he returned to Peru, the Authority reviewed both the facts as it had found them and the country information prevailing at the date of its determination. In that latter regard the Authority referred to a number of publications, mostly dated about mid-1996, which suggested that after a severe weakening in 1992 when its leader was captured, Sendero Luminoso had regrouped and had carried out a number of attacks and murders shortly before the articles were published. The Authority concluded that as a result of the resurgence (p 20) it could be inferred "... that Sendero Luminoso continues to have the means to locate opponents it perceives to be of some significance and profile". Whilst doubting what might happen were Mr Sequeiros to return to Peru, the Authority again resolved that doubt in his favour and concluded (p 22) that:

"We therefore find, on the unique and particular facts of this case, that the appellant's fear is indeed well-founded, and that this extends not only to his home district but also to the whole of his country of origin."

"We accept that the appellant's fear is based on the Convention ground of adverse political opinions being imputed to him by the Sendero Luminoso. We accept that due to his activities as an officer in the anti-terrorism squad, the appellant would be perceived not only as being against the Sendero Luminoso but also against their political aspirations to overthrow the very government he serves."

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes."

"... a "crime against humanity" consists of fundamentally inhumane conduct, often grounded in political, racial, religious or other bias. Genocide, slavery, torture and apartheid are examples of crimes within this category."

"... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" for certain purposes when "such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

[24] In considering whether there were "serious reasons for considering" that Mr Sequeiros had been involved in crimes against humanity, the Authority recounted a report of May 1992 by Amnesty International as to human rights in Peru which said that such methods as near drowning and hanging by the arms for prolonged periods were commonly reported as being used by the Peruvian Police in emergency zones. The Authority concluded, on the basis of that information, Mr Sequeiros' evidence and the concession by his counsel that such human rights abuses occurred in emergency regions such as that in which he worked (p 24) "that such acts were part of a widespread and systematic campaign carried out by the Peruvian government against the Sendero Luminoso".

[25] The Authority then said Mr Sequeiros had "seriously understated the degree of his actual involvement in police torture" and concluded (at p 25):

"Thus, having carefully considered the appellant's evidence, the Authority finds that there are indeed "serious reasons for considering" not only that the appellant has carried out acts of "torture" tn terms of the Convention against Torture, but as a member of a state agency, can also be said to have committed crimes against humanity in terms of Article 1F(a) of the Refugee Convention. Further, in terms of the criteria of Sivakumar v Minister of Employment and Immigration [1994] 1 CF 433), and based on the country information regarding the perpetration of human rights abuses in emergency zones such as H, such crimes would clearly have been committed on behalf of the Peruvian government against its own nationals as part of a systematic and widespread campaign to eliminate them as members of the Sendero Luminoso.

This being the case, the Authority finds that this particular appellant, having committed crimes against humanity, is therefore excluded from the benefits of the Refugee convention, by virtue of Article 1F(a)."

[27] Those comments are tempered by the fact that although the appeal to the Authority is a de novo hearing in the way in which that term is discussion in Re RS, this is an application for judicial review and proceeds upon the well-established principles affecting such applications. It is not, in any sense, an appeal from the Authority. Indeed, there is no appeal (Refugee Status Appeals Authority Terms of Reference Part II para. 5(4)).

[28] Mr Sequeiros' first cause of action pleaded that the Authority failed to take account of relevant considerations of "adequately assessing the direct evidence" given by him but gave greater weight to the Amnesty publication concerning human rights abuses by the Peruvian Security Forces. This was the only cause of action which bore on Mr Sequeiros' position.

[29] There was no submission that the Authority was not entitled to take account of the various publications to which it referred in its judgment and, in particular, the Amnesty publication. Given that, and given the Authority's ruling on Mr Sequeiros' credibility and the fact that it plainly balanced the rest of its findings, including those of Amnesty against that finding, it may be thought that the way in which this cause of action was pleaded was wholly answered by the fact that the Authority was entitled to do as it did and, having had the advantage of seeing and hearing the witnesses, was entitled to balance the various conflicting pieces of evidence one against the other in reaching the conclusions which it did.

[30] However, against the possibility that such a view may be thought to do a disservice to the matters advanced on Mr Sequeiros' behalf in support of his application for judicial review, the Court turns to the submissions.

[31] Mr Chauca submitted that in New Zealand law it was established by such authority as there is that determining whether or not a refugee should be excluded under Art 1F(a) requires a consideration as to whether a crime against humanity has been committed and, if so, whether it has been committed in a widespread and systematic fashion.

[32] He relied on Refugee Appeal No. 1248/93 Re TP (Refugee Status Appeals Authority 31/7/95) where the appellant had been involved in the Sri Lankan uprising and was excluded under Art 1F(a). In that case, the Authority considered a number of definitions and international instruments defining crimes against humanity, including Art 6 of the London Charter of the International Military Tribunal in which crimes against humanity include "inhumane acts committed against any civilian population ... or persecutions on political ... grounds ... whether or not in violation of the domestic law". In that case the Authority also accepted that crimes against humanity must generally be committed in a widespread systematic fashion and often against a country's own nationals (Sivakumar (supra) at 442-443) and that what elevates an action constituting a domestic crime into a crime against humanity is the committal of the actions on a widespread scale against victims who are members of a targeted group (Sivakumar (ibid) adopting Rikhof: War Crimes, Crimes Against Humanity and Immigration Law (1993) 19 Imm. L.R. (2d) 18, 30).

[33] Mr Chauca submitted that Mr Sequeiros' actions did not amount to the commission of crimes against humanity as so defined, pointing out that were Mr Sequeiros' action to qualify in that regard, the same might be said of any member of the Peruvian Police who had served in an emergency zone.

[34] In considering that submission, it is important to bear in mind that Mr Sequeiros and his counsel both accepted that the Peruvian Police have historically committed "excesses" in interrogation, particularly the interrogation of suspected terrorists and that these "excesses" can amount to inhumane acts as defined by the international instruments.

[35] That concession, in this Court's view, taken in combination with Mr Sequeiros' evidence - corroborated, to an extent, by that of his brother - and the Authority's factual finding is tantamount to an acceptance that the Peruvian Police persecute Sendero Luminoso for its political views and that Mr Sequeiros participated. Even though Sendero Luminoso's actions may have been in breach of Peruvian domestic law, Mr Sequeiros' admitted actions and those of his commandants are still plainly within the Peruvian Government approach to Sendero Luminoso in emergency zones as described in the international papers on which the Authority relied and, just as plainly, come within the definition of crimes against humanity.

[36] Whether or not a similar conclusion would be reached in relation to other Peruvian policemen is not a matter for decision in this case. Any former Peruvian policeman who seeks refugee status in this country will doubtless have his actions scrutinised with the same care as the Authority scrutinised Mr Sequeiros' case.

[37] This ground for review accordingly fails.

[38] That conclusion does not overlook counsel's submission that there were no "serious reasons for considering" that Mr Sequeiros had been guilty of crimes against humanity and that exclusion clauses are required to be restrictively interpreted (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1988) para 491 p 35) but in that regard, as the Refugee Status Appeals Authority found in Re TP ((supra) p 32) the test of "serious reasons for considering" is a lower standard of proof than the balance of probabilities. That standard of proof only comes into play when the Authority is considering determinations of fact. Here, the Authority reached a conclusion adverse to Mr Sequeiros and there appears nothing in the judgment to suggest that it did not correctly apply the required standard of proof and the correct approach to interpretation.

[39] It remains to add that this Court accepts that although Mr Sequeiros' membership of an "organisation which from time to time commits international offences is not normally sufficient for exclusion from refugee status" where an organisation is "principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts" (Ramirez v Minister of Employment and Immigration [1992] 2 FC 306, 317 per MacGuigan JA). Frequent participation in such acts is unnecessary: Art 1F(a) only speaks of "a crime against humanity" in the singular. This Court adopts, with respect, the finding of the Court of Appeal of the Federal Court of Canada in Equizabal v Canada (Minister of Employment and Immigration) (1994) 24 Imm. LR (2d) 7 where a Guatemalan application for refugee status was excluded under Art 1F(a) for carrying out acts which came within the definition of crimes against humanity on only two occasions and then under orders from his superiors.

[40] Mr Sequeiros has accordingly failed to make out any ground for judicial review of the Authority's findings under the only cause of action which relates directly to him and his application is accordingly dismissed.

[41] The remaining cause of action relates to Mrs Sequeiros and the children and is based on what was pleaded as a legitimate expectation that all plaintiffs expected that Mrs Sequeiros and the children would be considered in any decision relating to her husband and that they would not be denied refugee status if found to have a well-founded fear of persecution for a Convention reason.

[42] Mr Sequeiros' printed application for refugee status contained a question as to whether he wished his wife to be "included in this application". He ticked that box. The form was signed by Mrs Sequeiros at the end, under the direction "this part must be signed by the principal applicant and spouse". That part of the form included a declaration as to the correctness of the "information given about myself, my spouse and my children".

[43] Evidence before this Court shows that the form was phrased in this fashion and contained no reference to Art 1F(a) because the exclusion applies so rarely. The form is designed to acknowledge the principle of family unity. That is defined by the UNHCR Handbook para.185 which said that family members and other dependants are normally considered as part of the family if they are living in the same household but if the head of the family is not a refugee other dependants can lodge their own application: "in other words, the principle operates in favour of dependants, and not against them".

[44] Despite that, the case was plainly presented to the Authority as an application for refugee status by Mr Sequeiros alone. His refugee status application form contained no statement of matters unique to Mrs Sequeiros' position. Mrs Sequeiros must have been aware of the necessity for a separate application given her application in 1992 and her subsequent withdrawal. Mr Sequeiros' legal advisors informed the Authority prior to the hearing that Mrs Sequeiros would be called as a witness: there was no suggestion that she was appearing as an applicant in her own right. The evidence she and others gave before the Authority was confirmatory, of that given by her husband. Her evidence contained none of the factors which might have been unique to her case, such as her earlier visit to New Zealand, the fact that she was the mother of a New Zealand citizen and the fact that, on the evidence given to the Authority, there was no basis on which Art 1F(a) could be said to apply to her. There was also no evidence given by her that she, as opposed to her husband, might have had a well-founded fear of persecution, presumably because she did not regard that as being in issue.
 
[45] In a Minute delivered on 14 March 1997, the Authority noted Mr Sequeiros' statement in the application form for his wife and children to be included but said that its decision "relates solely to the appellant" and that Mrs Sequeiros' position had not been separately considered. Since delivery of the Authority's decision regarding Mr Sequeiros, Mrs Sequeiros has filed her own application for refugee status. It would not be right for this Court to offer any comment on whether Mrs Sequeiros and the children can bring themselves within the refugee Convention given her undetermined application.

[46] In the light of all of that, this Court takes the view that the form of application for refugee status which Mr Sequeiros signed might well be reconsidered by the Immigration Service with a view to amending it to provide for a separate statement by an included spouse of any reasons relating to them and the children which do not apply to the applicant spouse. Reference should also be made to the principle of family unity and the possibility of exclusion.

[47] That said, however, it is clear that even if Mr and Mrs Sequeiros were initially misled by the form as they now allege, any misconception had disappeared by the time they were preparing for the hearing. The hearing was conducted as if it were an application by Mr Sequeiros alone.

[48] In this case, Mrs Sequeiros appears to be alleging breach of legitimate expectations both as to policy and as to hearing. However, even though the Refugee Status application form may perhaps have initially misled them, the way the form was phrased and the way the case was conducted meant that the necessary unambiguous express promise or representation was absent or was inoperative prior to the hearing R v Secretary of State for the Home Department ex parte Oloniluyi [1989] Imm. LR 135 R v Secretary of State for the Home Department ex p Islam [1990] Imm. LR 220, Woolf and Jowell, de Smith Woolf and Jowell, Judicial Review of Administrative Action (5th ed) (1995) para 8-054 p 425, Wade and Forsyth: Administrative Law (7th ed) (1994) p 418-419, Taylor: Judicial Review (1991) paras.13.07, 13.08 p257-258, but see Aronsen and Dyer: Judicial Review of Administrative Action (1996) p 413ff). Therefore even, to put it at its highest for Mrs Sequeiros and the family, if the misleading nature of Mr Sequeiros' refugee application form factually raised any expectation on their behalf they did not pursue it at the hearing and the elements of a claim for judicial review based on an alleged breach of legitimate expectations are not made out. Further, her separate application shows an intention to pursue her rights in accordance with the normal evaluative process.

[49] In all those circumstances, this Court concludes that no ground has been made out to review the fact that the Refugee Status Appeals Authority did not separately consider the position of Mrs Sequeiros and the children and accordingly the plaintiffs' case fails on that ground as well.

[50] The Courts formal orders are accordingly:
 

(a) That the plaintiffs' claim is wholly dismissed.

(b) If costs are to be pursued and the parties are unable to agree, memoranda may be filed with counsel indicating, if they think it appropriate so to do, that all questions of costs may be determined by this Court without the necessity for a further hearing.  Any such memorandum from counsel for the defendants is to be filed within 28 days of the date of delivery of this judgment, and that by counsel for the plaintiffs within 42 days of the date of delivery.