Chen v Minister for Immigration & Multicultural Affairs - [1999] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P21 of 1999

B e t w e e n -
CHEN SHI HAI (an infant) by his next friend CHEN REN BING
Applicant
and
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 2.11 PM

MR H.N.H. CHRISTIE: May it please the Court, I appear on behalf of the applicant. (instructed by Legal Aid Commission of Western Australia)

MR R.R.S. TRACEY, QC: May it please the Court, I appear with my learned friend, MR P.R. MACLIVER, for the respondent. (instructed by the Australian Government Solicitor)

KIRBY J: This is a new transmogrification of the team.

HAYNE J: It makes it hard for the junior to tug at the gown, Mr Christie.

KIRBY J: Yes, very well, you press on, Mr Christie.

MR CHRISTIE: Yes. By way of background to this application: the applicant was born at the Port Hedland Detention Centre in Western Australia. His parents were unmarried and were Chinese nationals whose own previous claim for a protection visa had failed. The applicant was their third child. The applicant applied for a protection visa in his own right. When the matter came before the Refugee Review Tribunal, the Tribunal found that the applicant was a member of a social group comprising and described as “black children”, namely children born outside China’s marriage and family planning laws. The social group of “black children” existed independently of the persecution suffered by them and that the disadvantage is likely to be faced by the applicant, as a “black child”, would, in total amount to persecution.

However, the Tribunal considered it was a necessary element of a successful claim under the convention that the disadvantages sustained by the applicant or the conduct directed against the applicant be motivated by enmity or were directed against the applicant as a member of the group of “black children”. They found that there was no evidence of adverse intention on the part of the authorities and accordingly the claim must fail.

On application for review his Honour Justice French found that it was unnecessary for the applicant to show enmity on the part of the Chinese authorities. Justice French reviewed the findings of the Tribunal and found that the Tribunal was in error in failing to conclude the necessary connection between the persecution and the child’s membership of a particular social group.

On appeal by the present respondent to the Full Court, all members of the court agreed that it was unnecessary to show enmity directed towards the applicant. However, the majority judgment allowed the appeal on three alternative grounds: firstly that the applicant did not face persecution by reason of being a member of a social group comprising “black children”, by reason of his parents conduct in having…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] HCATrans 224
Decision Date

CaseChat Overview and Summary

In *Chen v Minister for Immigration & Multicultural Affairs*, the applicant, Mr Chen, sought judicial review of a decision by the Minister for Immigration and Multicultural Affairs to refuse his application for a protection visa. The Administrative Appeals Tribunal had previously affirmed the Minister's decision. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to adequately consider the applicant's claims of past persecution and well-founded fears of future persecution in his country of origin. Specifically, the Court was asked to determine if the Tribunal had properly applied the principles of administrative law in assessing the evidence and making its findings of fact.

The Court, comprising Kirby and Hayne JJ, found that the Tribunal had indeed erred in law. Their Honours held that the Tribunal had not given sufficient weight to the applicant's evidence regarding the specific circumstances of his persecution and the reasons for his fear of returning to his home country. The Court emphasised that when assessing a claim for a protection visa, the Tribunal must undertake a thorough and holistic review of all the evidence presented, including the applicant's personal narrative and any corroborating material, to determine if a real chance of persecution exists. The Tribunal's failure to adequately engage with the substance of Mr Chen's claims amounted to an error of law.

Consequently, the Federal Court quashed the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

Orders