Kin; Lee; Chan v The Minister for Immigration and Ethnic Affairs

[1988] HCATrans 320

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M51 of 1988

B e t w e e n -

CHAN YEE KIN

Applicant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

Office of the Registry

Melbourne No M52 of 1988

B e t w e e n -

SOO CHENG LEE

Applicant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

Office of the Registry

Melbourne No M53 of 1988

Chan

BRENNAN J
DAWSON J
GAUDRON J

B e t w e e n -

KELLY KAR CHUN CHAN

Applicant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

Applications for special leave

to appeal

MlT8/l/RB 1 9/12/88

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 DECEMBER 1988, AT 12.09 PM

Copyright in the High Court of Australia

:MR J. DWYER, QC: If the Court pleases, I appear with my

learned friend, :MR B. KEON-COHEN, for the applicant

in each of these matters.	(instructed by
John Ketelhohn)

:MR R.R.S. TRACEY:  If the Court pleases, in each of these

matters I appear for the respondent. (instructed

by the Australian Government Solicitor)

BRENNAN J: Yes, Mr Dwyer.

:MR DWYER: If the Court please, the principal applicant, if

I could so describe him, is Mr Chan Yee Kin who

is a citizen of the People's Republic of China.

The second applicant, Soo Cheng Lee,is his de facto wife who is a citizen of Malaysia and the third

applicant, Kelly Kar Chun.Chan, is their child who

is a citizen of Australia.

The proceedings in the Federal Court, both before Mr Justice Keely and before the Full Court

concerned questions as to the deportation of the

applicants and a separate question as to whether or

not Mr Chan was a refugee under the Convention and

Protocol as to the status of refugees. No appeal

has been sought to be brought to this Court in the

deportation proceedings. The application is

restricted to the refugee status proceedings. Each

applicant, of course, has an interest in the outcome
of those proceedings and, indeed, if ultimately
deportation proceeds, that must inevitably result

in the breaking up of this family unit, so that

Soo Cheng Lee and Kelly Kar Chun Chan both have a

very real interest in the refugee status question.

But it is sufficient if the argument is put on behalf

of Mr Chan.

There is one matter that I ought correct in the

materials at the outset. On page 22 of the application

M1T8/2/RB	2	9/12/88
Chan

book in paragraph (vi) the assertion appears:

Mr Chan had not acknowledied that there had

been no harassment of those members of his

family who remain in China.

That is, as it stands, not an accurate statement. In the first interview in 1982 his answers to questions

could be construed as such an acknowledgement. It is

in his later interviews and in the letters that are
exhibited that assertions of such harassment are

contained. But I desired to correct that paragraph

which in terms is inaccurate. The question for

determination in this case is whether Mr Chan is a

refugee within the Convention and the Protocol and

that in turn depends on whether he was and is outside

the People's Republic of China owing to a well-founded
fear of being persecuted for reasons of political

opinion and was owing to such fear unwilling to avail

himself of the protection of that country. The

delegate decided that question adversely to Mr Chan.

He determined that Mr Chan was not a refugee within

the Convention and Protocol. Mr Justice Keely

concluded that that view could not be reasonably

arrived at by the delegate and the Full Court overturned

Mr Justice Keely's view and held that the determination

could reasonably have been arrived at.

The test laid down by the Convention requires

no more than that the fear be based on a reasonable

degree of likelihood or a serious possibility that

Mr Chan will be persecuted if he is returned to his

country of origin. And the authority for that is

REG V SECRETARY OF STATE, (1988) 1 All ER 193, a

decision of the House of Lords. Now the facts of the

matter are that Mr Chan had been sent to exile in a

distant area in China in 1969 for hard labour and

thought reform - - -

BRENNAN J: Before you go into the facts of the case, Mr Dwyer,

what is the proposition which you wish to canvass

on appeal to this Court?

MR DWYER:  The proposition is that having regard to Mr Chan's

history the only view reasonably open to the

delegate was that Mr Chan had been persecuted as

an anti-revolutionary for political opinion in China

and that having been so persecuted he held a

well-founded fear that if he were now returned to

China he would again be persecuted.

BRENNAN J: That fact was found in your favour by Justice Keely

and against you by the Full Court.

MR DWYER:  Yes.

MlT8/3/SR	3	9/12/88
Chan

BRENNAN J:  That depends upon the assessment which the courts

below have made of the facts of the case?

MR DWYER:  Yes, it does, but it depends also on the view which

the court took as to what is required in order to

come within the Convention definition and it is

submitted that the Full Court did not deal with that

matter appropriately in terms of the Convention.

BRENNAN J:	Do you mean they have misinterpreted the Convention?
MR DWYER:	Yes.

BRENNAN J: Could you take us to the passage in which that

appears?

MR DWYER:  Yes, the crucial passage appears at pages 218 and 219

of the application book where the essence of the

court's reasoning as to the language of the C~nvention

is set out, starting at line 15 on page 218 and

continuing on page 219. What the court does on

page 218 is set out a number of factors which were

relied on as constituting the well-founded fear of

persecution which relate to Mr Chan's history and

his family background.-	The family background
is referred to on page 219.	So the court is

correctly taking into account matters there but

it then proceeds to the matters which it says could be:

weighed against those matters, assuming that

the decision-maker acc-e·pted them all-

are matters which it is said:

the decision-maker was clearly entitled to

take into account.

Now it is submitted that from that point onwards, in

what is said on rest of page 219 and on the top of

page 220, the court does deal with the Convention on

a mistaken basis.	And perhaps I could develop that in
a little more detail.

BRENNAN J: Is there any passage in the Full Court's judgment

where they attribute a particular construction to

the Convention?

MR DWYER:  No, the matter does not arise in that way, if the

Court please. If one then looks at the factors which

the decision maker is said to be clearly entitled to
take into account and one weighs them against what

the Convention requires then, it is submitted, that
the court is taking inappropriate things into account.

That is the way in which the argument is put.

BRENNAN J: That the matters appearing on pages 219 and 220 were

factors which the decision maker would not be entitled

to take?

MlT8/4/SR	4	9/12/88
Chan

MR DWYER: 

Yes, it is submitted. In part, as to the first one,

because the material was not there on the evidence,
bu4 in par4 because the Convention requires more.

The first one was the view which appears at line 23,

that:

The decision-maker was entitled to take

the view that the imposition of punishment

for that conduct on Mr Chan's part would

not now be likely, given the length of time

since that conduct occurred and the substantial

changes in the political situation in that

country since Mr Chan left.

GAUDRON J:  You say, really, all that is in issue is whether the

belief is reasonably held by the individual and it

is impermissible to have regard to the likely

consequences of return'as known to the decisior. maker?

MR DWYER:  The point is that they were not known to the

decision maker to begin with. The submission is

that the only way in which those factors can be taken

into account is in terms of assessing the reasonable
basis for the refugee's fear, particularly in a

situation whe~e the refugee has in fact been persecuted

when he was in China and the question is is he, on

that basis, properly entertaining a fear that if he

goes back he is likely to be persecuted again. And

that is really the question.

DAWSON J:  Have we got the relevant provision in the Convention

or are you going to hand the Convention up?

MR DWYER:  I beg the Court's pardon. We do have some folders

of materials which contain the Convention which was not

included in the - - -

DAWSON J:	If you could just direct us to the relevant portions shortly?
MR DWYER:
relevant to this matter.

Yes, there are perhaps two parts of it that are

BRENNAN J: Where does one find the statutory power which was

exercised by the delegate?

MR DWYER:	That is in section 6A(l)(c) of the MIGRATION ACT.
BRENNAN J:	Do we find that in the papers before us?
MR DWYER:	I am unable to direct the Court to a passage where

that is set out.

BRENNAN J. My brother Dawson has a copy of it, thank you,

and so does Justice Gauaron.

MlT8/5/SR	5	9/12/88
Chan

MR DWYER:  The relevant determination appears in (c):

the Minister has determined, by instrument
in writing, that he has the status of refugee

within the meaning of the Convention relating

to the Status of Refugees that was done at

Geneva on 28 July 1951 or of the Protocol

relating to the Status of Refugees that was

done at New York on 31 January 1967.

The Convention and the Protocol have been handed up

to the Court. The Protocol has not we will hand

the Protocol up as well. What the Protocol does is

extend the Convention in terms of time and it does

not change the terms of it. Now that is the

determination that was being made. The passage in

the Convention which is in issue is in article lA.

In A there is set out the definition ot'refugee'. If one turns to the second part of the definition in

subparagraph (2):

owing to well-founded fear of being persecuted

for reasons of race, religion, nationality,

membership of a particular social group or

political opinion, is outside the country of

his nationality and ·is unable or, owing to

such fear, is unwilling to avail himself of

the protection of that country.

That is what one is required to bring oneself within

in order to be a refugee and the proper approach under

the Convention, it is submitted, is that one assesses

Mr Chan as he was when he fled China in 1974 and one

asks whether he was then a refugee because the

Convention in subparagraph Con the same page refers

to the circumstances in which one can cease to be a

refugee. And none of (1) to (4) on that page is

relevant. Subparagraph (5), however, may be relevant:

He can no longer, because the circumstances

in connexion with which he has been recognised

as a refugee have ceased to exist, continue
to refuse to avail himself of the protection

of the country of his nationality.

In terms that would appear to deal with persons who have been recognised as refugees, but it is treated

in the textbooks as if it applies to the question

generally of losing refugee status once one has it.

So that it is not limited to persons who have, by

some official act, been granted that status, but is

treated as applying generally to persons who have

the status of refugees and that,no doubr.,for the

convenient reason that if that were not the case

there is no other way in which you could lose the

status in those circumstances. Now if the Court is to

MlT8/ 6/SR	6	9/12/88
Chan

say that the decision maker could take into account

the current situation in China, it is necessary that
there be material upon which that can be based, and

there was not, but it is also necessary that the
materials satisfy the circumstances in connection

with which he became a refugee have ceased to exist.

Now the - - -

BRENNAN J:	What do you mean that there must be material on which this can be based?
MR DWYER:	There must be material before the decision maker

as to any change in the circumstances in China which

have taken place.

BRENNAN J:	Why cannot he take notice of what he knows himself?
MR DWYER:	It may be that he can, but Mr Justice Keely found

that the material beyond what had been put before

the decision maker by the applicant had not been

taken into account.

BRENNAN J: It seems to me incredible, when one is speaking of

a situation like this, that one would not have some

consciousness that it is 10 years since the end of

the Cultural Revolution?

MR DWYER:  But the matter does not only depend upon the

Cultural Revolution, Your Honour.

BRENNAN J:  Of course not, I was giving you an illustration

of something which is notorious and on that account

might be taken into account.

MR DWYER:	No doubt notorious facts of that kind could be taken into account in the way that a decision maker
can always take notorious facts into account. But
if one is to address the particular question of
what Mr Chan faces if he returns to China, by way of
punishment and persecution, then that cannot be left
must in fact involve material dealing with his
simply to matters of notoriety of that kind, but
situation. And, indeed, the whole decision-making
process in this case is in part, it is submitted, vitiated because there was no proper consideration that people are - the initial decision maker and then the Full Court were disposed to deal with the matter on an assumption of that kind -

DAWSON J: Is there any onus in these matters?

MR DWYER:  The textbooks deal with the question of onus. Indeed

the guidelines which have been published by the

Australian Government refer to the question of onus

and they may be of assistance to the Court. This is,

of course, not an area where one can find many clear

decisions of courts laying down what the onus is.

M1T8/ ?/SR	7	9/12/88
Chan

But I would hand up to the Court copies of the guidelines which deal specifically with the question

of onus. And that is dealt with on page 9 of the

guidelines, where there is reference under

paragraph A36:

It is a general legal principle that

the burden of proof lies on the person

submitting a claim. The UNHCR has, however,

adopted the general principle that where, in

the absence of conclusive evidence, there is

reasonable doubt about the facts alleged by

a person claiming refugee status, that person

will be given the benefit of the doubt.

And, indeed, the Supreme Court in the United States has approached the matter in a very similar way to

that in the CAROOZA-FONSECA case, decided in 1987.

That case is reported at 94 L Ed 2 434 and the

Court in that case, at page 452 appears to adopt

the general view that the way in which these matters are to be assessed is by taking the account given by

the refugee and saying if that account is true is

the fear of persecution which the refugee holds

well founded. And that, it is submitted, is what the

guideline contemplates.

DAWSON J:  That does not say much about onus, does it, because the

only benefit of onus is when you are in some doubt?

MR DWYER: 

That is so, and it is really saying that the benefit

of the doubt is to be given to the person seeking
refugee status.

DAWSON J:  Th.ere is a passage ..... where it says the onus is not. But

I know these docunents contain conund:runs like that.

MR DWYER: 

Because, although, if I could return, in terms of

the particular point, to the notorious fact that the
Cultural Revolution is over, it is also an equally

notorious fact that there is still a communist

regime in China and it is not a democratic regime

and it is a regime in which freedoms, such as freedom

of movement, are not respected.

BRENNAN J: 

The extent to which those propositions are

correct are no doubt matters which are the subject of information given to officials of the government

from time to time. , It just seems to me a curious

notion that propositions of that kind are propositions

which are assumed by courts in determining a WEDNESBURY

unreasonableness application under the JUDICIAL REVIEW

ACT?

MR DWYER:  But the peculiar twist on all of that in this

case, if the Court please, is that at page 66 of the
appeal book there is the proforma letter that the

department always uses in these cases which says:

H1T8/8 /SR	8	9/12/88
Chan

This decision was taken following consideration

of detailed advice and information available

to the Committee concerning the general

situation prevailing in China and your known

particular circumstances in that country as

they related to your claims for Refugee Status.

And that, of course, is precisely what should be

taken into account in determining a matter of this

kind, but as Mr Justice Keely foun4 that letter is

not to be accepted on its face, on the contrary it

was found by His Honour that the Committee did not
have detailed advice and information of that kind

and that finding appears on page 180 of the appeal book

and that finding was in terms accepted by the

Full Court on page 215 of the appeal book. And the

way that the Full Court deals with the matter appears

at line 14. His Honour accepted that the DORS Committee

did not have before it information of the kind

described in the letter.

Now, in those circumstances, the decision maker

in making the decision under the Convention was not
entitled to take the view which the Full Court there

says the decision maker was entitled to take.

GAUDRON J:  Mr Dwyer, could I ask: what precisely is the

duty of the nation State to a refugee? Is that

asserted in the Convention?

MR DWYER:	No, it is not, with respect. Again, I - - -
GAUDRON J:	I mean, there are certain duties but the relevant

duty that bears upon this application?

MR DWYER:  Yes. The guideline addresses that matter, for what

that is	worth, on page 2 of the guideline and
article	A2 sets out the definition. And then on
page 3,	it says in article A4:

States signatory to the Convention and It is important to recognise that

Protocol are not obliged to take in refugees

from outside their territory. Australiars

intake of refugees, therefore, is in response

to humanitarian rather than international

legal obligations. It is also in keeping

with the principle of international solidarity

and burden sharing.

DAWSON J:	So that you then have to go to the MIGRATION ACT?
MR DWYER:	Yes, and our case is not founded upon the burden

placed upon Australia by the Convention. Our case

is that in making that determination under the

MIGRATION ACT, the Minister or his delegate is bound to deal with the matter properly.

MlT8/9/SR	9	9/12/88
Chan

GAUDRON J:  Of what relevance is the Convention then to the

Minister's dealing with the matter?

MR DWYER:  The Convention supplies the test that the Minister

has to apply when he is making that determination.

GAUDRON J: Now can I ask this? The Convention presupposes

that there are some people - they being described using the present tense - who are refugees and it

presupposes then in C that the Convention will cease

to apply to other persons. What it seems - and if

you look at C - to suggest is that you cease, not

to be a refugee, but you cease to have the benefit

of the Convention if the circumstances change so

that the person can avail himself of the protection

of the country of his nationality or origin. I

am just wondering, do you go so far as to say that
the test, if you apply the Convention, is whether
he has ceased to have the benefit of the Convention

because of that, rather than the question whether

at the time when the Minister considers the issue he

is a person who falls within the description of

"refugee~,?

MR DWYER:  What we say is that if he was a refugee when he fled

China, that is if he has been a refugee at any

material time and the fact that circumstances are

said to have ceased to exist is relied on as saying

that he is not a refugee, then that can only be

done by the application of the paragraph C, in so far as

it can apply to the circumstances of that particular

individual.

GAUDRON J:  But that was not the case you put before the

Full Federal Court was it?

MR DWYER:	No, it was not.
GAUDRON J:	And it was not the case you put before

Mr Justice Keely either?

MR DWYER:  No, it was not. But the way in which the matter

was put at every turn was that Mr Chan did hold a

reasonable fear by reason of what had happened to

him and by reason of his belief as to what would

happen to him now. But I would agree that the case

was not put in that particular way.

GAUDRON J: Is there any other way a question of construction

arises?

MR DWYER:  It is submitted that there is, both in what the

delegate said and what the Full Court said, because

inappropriate things, things which just do not fit

under the Conventio~ are constantly referred to. For example, just going down further in what the

Full Court says, reference is made to Mr Chan's

MlTS/10/SR	10	9/12/88
Chan

inability to articulate any political issue on

which he differed from the authorities now in power in China. The Convention does not require that one

be able to articulate any such differences. The

Full Court then goes on to refer to the fact that

Mr Chan disavowed any involvement while in Australia

in any activities which that regime might regard

as antagonistic to it or to its interest. The

Convention is not interested in matters of that kind and questions of that kind, it is submitted,

just - - -

GAUDRON J:  But they are matters, are they not, which would

be relevant, first of all, to the credibility of a
claim of reasonable belief, and secondly, as to the
reasonableness of belief if you approach the

question as being that the person must fall within

article 1A2 at the moment when the Minister is

considering it?

MR DWYER:  No, it is submitted not, because the textbooks

considering the Convention and its operation, make

it clear that one may be a refugee properly, that is

one may have the appropriate fear and genuinely so,

even though one has not engaged in any political

activity whatever. The matter does not depend on

what the particular individu~l has done, it depends

upon the way in which the authorities in that country,

either have treated him or he may reasonably believe

are likely to treat him. And that could happen to

somebody who has nothing except try to avoid notice

in the political arena. That is, part of, at least of

the way in which Mr Chan has been dealt with is

because his father:	I
(i

was a member of the Kuomintang and had

served in the Nationalist air force and

had fled ..... following the communist

takeover.

And the family, those parts of it that have remained

in China have,, in one way or another, subsequently

been harassed and persecuted by the authorities.	And
when the authorities kept on dealing with ~r Chan

as being an anti-revolutionary. that family association

is obviously playing a very large part in the

authorities dealing with him in that way. And that

brings him under the Convention, it is submitted,

whether he had earned that designation or whether he

had not. And the suggestion that activities in

Australia would have any particular bearing on that

is really, it is submitted, not to the point at all.

MlT8/11/SR	11	9/12/88
Chan

BRENNAN J: Mr Dwyer, the proviso to paragraph C(S) on page 5 -

were the facts which might be relevant under that

proviso canvassed in the courts below?

MR DWYER:	No, Your Honour.
BRENNAN J:	I rather thought that your answer to Justice Gaudron - - -
MRIWYER:	I think that the answer is simply, no, they were not.
BRENNAN J:	We are left in this situation, that at one time there

may have been a fear of persecution entertained

reasonably by the applicant and the question whether,
at the present time, he entertains that fear reasonably

arose simply on an assessment by DQRS of the existing

situation in its totality.

MR DWYER:	Subject to the finding which His Honour made about
what they took into account but, yes, the situation was
dealt with in that way.

BRENNAN J: It was not a question of Mr Chan presently retaining

a fear by reason of his previous persecution.

MR DWYER: Well, yes, it is, Your Honour.

BRENNAN J: Well, that is what I asked you.

MR DWYER:	I am sorry, I misunderstood Your Honour.
BRENNAN J:	If one looks at the proviso one sees that it does not

apply to a person:

who is able to invoke compelling reasons

arising out of previous persecution for

refusing to avail himself of the protection

of the country of nationality.

MR DWYER:	Yes, but what I told Your Honour was that that was not
argued in either of the courts below.
BRENNAN J: Yes, I understand.
DAWSON J:	I am a little confused. That proviso seems only to
apply to a refugee falling under section A(l). Is
Mr Chan under A(l)? I thought he was - - -
MR DWYER:	I think he is under A(2).  I am indebted to Your Honour
Justice Dawson.
BRENNAN J:	Under A(2), yes.
DAWSON J:	But I do not know how that works out, but still - - -
MR DWYER:	The case was certainly conducted on the basis that
Mr Chan presently held a well-founded fear by reason
of, amongst other things and, in particular, what had
happened to him in the past.  The case has been conducteq
throughout on that basis.

M1T9/1/VH	12	9/12/88
Chan

DAWSON J:	I do not know why it only applies to A(l) and not A(2), but there may be some explanation for that.
MR DWYER:	I think that does all turn on the history of the
Convention and that history in general is that, when
the Convention was entered into in 1954 various other
diplomatic arrangements and treaty arrangements were taken up and the matter was dealt with then on a
limited basis restricted to events before 1 Januarv 1951
and it is only subsequently that that has been wid~ned by the Protocol.
If one goes back from those matters which the Full Court took into account to the matters which the
delegate took into account it is submitted that the
error in the handling of Mr Chan's case becomes very
demonstrable.  The relevant part of the delegate's
reasons are set out at page 168 of the application book
and they are in numbered paragraphs. But what
His Honour has picked up - His Honour Mr Justice Keely -
has here picked up what the delegate said and this is
a convenient place to go to it - the delegate says:

I considered that the Applicant had no real

political profile in the People's Republic

of China.

Now, the Protocol, it is submitted, and the fear that

is referred to in the Protocol does not require a real

political profile at all. The delegate goes on:

I noted that he was unable to convey in detail

his claimed political differences with the

current regime in the People's Republic of

China, nor provide any credible explanations that

his internal exile and periods of detention were

related to any political activities on his behalf.

Now, the delegate is plainly misdirecting himself in

terms of the Convention. Political activities are not

required: it is political opinion that the Convention deals with. Mr Chan did, in fact, show how his

internal exile and his periods of detention were

related to matters falling clearly within the convention.

They related very much to his family being branded as

anti-revolutionary. That is clear, and the delegate

is plainly misdirectly himself there.

It is not necessary under the Protocol that a

refugee have an ability to convey in detail political

differences with the current regime. The Protocol

cannot be thought to turn on abilities to explain

matters of political philosophy or political ideology.

The delegate then, in paragraph 9 deals with the

past:

I accepted that he may have been discriminated

against to a limited degree due to the apparent

perception the local authorities had of his

M1T9/2/VH	13	9/12/88
Chan

family, but I considered that this did not

amount to persecution within the terms of the

Convent ion.

It is submitted that that simply on the facts was not

open to the delegate. Internal exile from 1969 until

his escape in 1974, with periods of detention for

other attempts to escape, is plainly, it is submitted,

persecution within the terms of the Convention and

cannot be properly, on any reasonably view, regarded

simply as discrimination to a limited detree.

BRENNAN J:  Mr Dwyer, could I take you back to the words of the

Convention? In this case your proposition is that

it was established beyond doubt that he was outside

the country of his nationality because of a fear of

being persecuted?

MR DWYER:	Yes.
BRENNAN J:	And the question that was really being debated was

whether the fear was well-founded; is that right?

MR DWYER:	That is certainly the way in which the matter ought
to have been debated.  It is not altogether clear that
that is how the matter was debated.
BRENNAN J:	No, but that is the issue that arises on the

construction of the Convention.

MR DWYER:	Yes, it is, Your Honour, and the delegate certainly
formally posed to himself the-. question in those terms.
DAWSON J:	And that is a fear existing at the time that he
went outside the country; in this case, it is some years ago.

MR DWYER: Well, the situation - the fear which he held both

when he left and at the time that he is being assessed

that is material.

DAWSON J: His fear at the time he is being assessed is material

because of clause 5, is it?

MR DWYER:	No, it is also material under clause A because it
goes to the question:

is unable or, owing to such fear, is unwilling

to avail himself of the protection of that

country.

That is saying, at the time when you are assessing

Mr Chan as to whether he is a refugee or not, he must

be considered in terms of whether he:·

is unable or, owing to such fear, is unwilling

to avail himself of the protection of that

country.

MlT9/3/VH	14	9/12/88
Chan

BRENNAN J: Well, the essential issue for determination was

whether or not the fear, assuming it to exist, was
well-founded.

HR DWYER: Yes, it is.

BRENNAN J:  Now, the delegate found against your client;

Justice Keely said the decision which the delegate
had come to was not one to which a reasonable

mind might come.

MR DWYER:	Yes.
BRENNAN J:	And the Full Court said that it was a conclusion to

which a reasonable mind might come.

MR DWYER:	Yes, it did.
BRENNAN J:	Now, if that was the issue, how does one spell out

of the facts to which you have drawn our attention

some misconstruction of the Convention? It may be

that, in the course of discussing the facts, any

tribunal might range upon questions of whether there

is a political profile, for example, but that might

be simply part of the ratiocination leading to the

posing of the relevant question. Can you demonstrate

from the line of reasoning that the relevant question

was not posed and that the answer that was given by

the Full Court was not one that was appropriately

given by it?

MR DWYER:	No, I do not think I can say that the relevant
question was not posed, Your Honour. But what the
submission that we make really boils down to, is this:
having regard to Mr Chan's history, it only permitted
of one answer and, that is, having regard to the circumstances, the only reasonably answer which could
be arrived at was an answer that he held a well-founded
fear,  to the extent that the courts have said must
be satisfied because both in the House of Lords and
in the United States, that all that is required is
a reasonable degree of likelihood or a serious
possibility that he will be persecuted if he is

· returned to his country of origin.

BRENNAN J: Well, that is an objective criterion, is it not?

MR DWYER:	Yes, it brings into account objective factors, yes.
One of the problems about the way in which this whole
case has been dealt with is this:  how can one bring
into account objective factors if the facts and circumstances relating to the present situation in
China are not before the decision maker in the
appropriate way? The House of Lords certainly
contemplated that there would have to be material
before the decision maker on which the objective side
of the fear could be assessed.  One of the things
that has happened in this case is that they were not
there.

MlT9/4/VH	15	9/12/88
Chan

BRENNAN J:  I think we will adjourn at this stage, Mr Dwyer.

AT 12.54 PM LUNCHEON ADJOURNMENT

OPON RESUMING AT 2.25 PM:

BRENNAN J:  Yes, Mr Dwyer.

MR DWYER: If the Court pleases. There is one other piece of

material that I desire to hand up to the Court. It is

some passages from a leading work in the area by

Grahl-Madsen. I desire· to refer to two of the extracts from

that work. First of all, as to the point that has

already been made that, starting as it is submitted

one can with the fact that my client had a

well-founded fear in 1974 when he fled from China,

and the question is, how does one then assess things

as they stand today,- it is submitted that the relevant

question today becomes, "Has any fundamental change

taken place which has removed the basis for fear which

he then had?" I ~ld refer to what is said in that work

at page 401 in that regard, where the author is

dealing with paragraph C of the Convention in terms

of circumstances ceasing to exist.	Otl page 401
the author refers to this:

It seems to be generally conceded that the term 'circumstances: should be interpreted so as to refer to fundamental conditions in the country of origin which justify or justified fear of

persecution. The collapse of an appressive

regime or the cession of a territory from one

State to another, may mean that the 'circumstances'

which justified fear of persecution have ·'ceased to exist' in the sense of the present provisions.

On the other hand, a less profound change

should not affect a person's refugee status.

Thus, the fact that a person's political offence, for which he feared sanctions of a persecutory

nature, has become subject to a statutory

limitation, does not suffice to bring to bring

the person in question within the ambit of the

present provisions.

Similarly, it is considered that an amnesty

in the refugee's country of origin does not

influence his refugee status.

And then, passi'.ITg over the reference to the German case:

the Convention ..... is designed to meet the needs

of persons fleeing from a country where people

MlT9/5/VH	16	9/12/88
Chan

are persecuted because of their background

or their beliefs -

which exactly fits this case, it is submitted -

Not every political offender, but only those

who fear the wrath of an approessive regime

may benefit under its provisions. This

being so, the present provision should clearly

not be construed so as to force a person to
accept, more or less at face value, any change

of policy of such a regime. Ih fact, a refugee

cannot be expected to submit himself to the very

persons who have persecuted or threatened to

persecute him.

And it is submitted that nothing in any of the material

would suggest that there is any basis for such a

fundamental change having been established in this

case.

BRENNAN J:  Your argument really is that the courts below did not

approach the question which was posed for decision on

a true construction of the Convention.

MR DWYER:	Yes, it is, Your Honour.
BRENNAN J:	It is that, rather than unreasonableness of decision making?

BRENNAN J: Well, it is submitted that that is a way in which

unreasonablness can be made out. That is, if a court

approaches. a matter in that way, then it is submitted that it falls within the concept of unreasonableness.

BRENNAN J: Yes. Couli you answer one further question for me,

Mr Dwyer? Section 6A(l)(c) which is the condition which must be fulfilled to activate the provisions of

that section, refers to a person who is:

the hol-0er of a temporary entry pennit which

is in. force and the Minister has determined,

by instrument in writing, that he has -

the words -

the Minister has determined ...... that he has -

is that the conferring upon the Minister of a statutory

power amenable to review under the AD(JR) ACT?

MR DWYER:	It is submitted that it is; it is submitted that when
the Minister makes or declines to make a detennination of that kind, he is making a decision within the
.AD(JR) ACT and it it is a decision for the purposes of
exercising a statutory power and thus falls within the
Act.

MlT9/6/VH	17	9/12/88
Chan

BRENNAN J: There has been no decision on that point, has there?

MR DWYER:	The cases involving that decision have been before the
Federal Court in other instances.  Such a decision
was involved in GUNALEELA V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS, which is a decision of the Full Court
of the Federal Court, (1987) 74 ALR. The court, in
that case, decided that a decision of this exact kind,
that is, a decision on a question of refugee status,
was reviewable under the AD(JR) ACT.
BRENNAN J:	Yes.
MR DWYER:	There is another reported case of a single judge of the Federal Court in which he dealt with the matter also.
That is SINGH - - -
BRENNAN J:	You need not go to it, there is authority for it.
MR DWYER:	There are certainly cases in which the Court has dealt
with the matter on that basis.
BRENNAN J:	I think we are seized of the nature of the problem.

Is there anything further you wish to say about it,

Mr Dwyer?

MR DWYER:  Yes. There is a subsidiary point which I have not so

far mentioned to the Court and which I at once concede

has not been argued below. It is a further aspect of

unreasonableness and that is in regard to the role of

the DORS Committee in this case. The point can be

stated very simply. There are cases in which it has

been said that the Minister can adopt and accept the

findings of the DORS Committee and that that does not

involve a failure by the Minister to determine the

question himself and there have been cases in which

that has arisen in other contexts. But the question

that arises here ~s whether a delegate to whom the involve himself in the degree of delegation that is

involved in adopting and accepting the recommendation

of the DORS Committee.

BRENNAN J:	Was that question agitated in the courts below?
MR DWYER:	No, it was not, if the Court please, but it is a
question that very squarely arises on the material in
this case.  The question has been before this Court
in TAYLOR V PUBLIC SERVICE BOARD, where the Court deals
with the problem arising from the fact that a
decision maker adopts and accepts the work done by somebody else as being a permissible delegation, and
the matter was dealt with by Mr Justice Deane in the Federal Court in SEAN INVESTMENTS PTY LIMITED V
MacKELLAR wherein again it was the Minister who
accepted the recommendation of the relevant committee but, again, the delegation point did not arise there because the Minister could delegate that part of his work to the committee. There is a Federal Court case,

MlT9/7/VH	18	9/12/88
Chan

SINGH V MINISTER FOR IMMIGRATION, where again, the

Minister had made the decision using the reconrrnendation of the DORS Conrrnittee in this way but, again, the delegation issue did not arise there because there had

been no delegation by the Minister to a deleate who,

in turn, would be delegating to the DORS Conrrnittee.

BRENNAN J: Well, you wish to agitate that question if special

leave is granted?

MR DWYER:  Yes, thank you. If the Court pleases. Now, it is

submitted that that point can also be brought within

the unreasonableness grourid.	The way in which it can
be brought in is really in this way:	the primary

decision making was required, in order to make a

determination under the section, to address these

questions himself. He had to inquire, he had to

satisfy himself about the personality of Mr Chan,

the nature and strength of his beliefs, his personal

and family background including his father's political

association; Mr Chan's activities and experiences,

Mr Chan's own interpretation of his situation; those

matters are culled from the United Nation's High

Conrrnissioner for Refugee's handbook on procedures and criteria for determing refugee status.

The delegate did no more than have before him the

file and the DORS reconrrnendation which he said he

adopted and accepted and from which he extracted

matters which he took over for himself. It is submitted

that it was unreasonable for the delegate to determine

matters in that way. He was bound, it is submitted, to inquire into those things for himself and satisfy himself if he was going to find that Mr Chan lacked

a fear based on the appropriate grounds, before making

such a finding against him and before making such a

determination adverse to to him.	The delegate, it is
submitted, failed to do that.

BRENNAN J:  Mr Dwyer, if you have canvassed the points on which

you would rely, then I think it would be appropriate

for us to call on Mr Tracey. Is there anything further

that you wish to say? Any further points you wish to

make?

MR DWYER:	The only that I have not addressed the Court on at all
is the question of the importance of the matter, but
it is submitted that it is plainly one of the appropriate
importance. If the Court please.
BRENNAN J:	I do not think that you need trouble, Mr Dwyer.
MR TRACEY:	If the Court please, the respondent's submission is

that this is not a matter appropriate for the granting

of special leave. The way in which my learned friend

has agitated these issues before the Court today is

an entirely different way from the way in which the

point was taken below. The way it was put below was

that, on the material before him, there was no reasonable

M1T9/8/VH	19	9/12/88
Chan

basis upon which the delegate could have come to

the conclusion to which he came. The way these

matters are put today by my learned friend are,

firstly, that in the process of coming to his

decision, the delegate engaged in a misinterpretation
of the Convention. That was not put below, and it is
not, in our submission, a ground that is susceptible

of being drawn under the cover of unreasonableness.

Similarly, he says, as his second point, that he wishes

to agitate the question of whether or not the delegate

was entitled to accept the decision-making processes

of the DORS Committee as forming a-basis upon which

he was entitled to act.

Again, as my friend concedes, it was not argued

below and it is not again something that is susceptible

of being brought within the notion of unreasonableness.
Really, if my friend is right, there would be no need
for any other the other grounds that appear in

section 5 of the ADMINISTRATIVE DECTSIONS UUDICIAL

REVIEW)ACT; they would all fall under the head of

unreasonableness. The way this matter was argued
below was, as I have already said to the Court, that
there was simply no basis upon which the delegate,

acting reasonably, could have come to the conclusion

to which he did. That argument succeeded before

His Honour at first instance; it failed before the

Full Court and, in both instances, the judges concerned

were confronted with the same body of material. There
was no evidence, no oral evidence; it was simply a

conclusion drawn in each case based upon the material

tqat was placed before the court in writing.

DAWSON J:	So that you can say that, even if they are new points or
points put in new way, there is no question of fact
involved that has not been agitated below.

MR TRACEY:  No. I cannot say there is no question of fact,

Your Honour, but what can be said, I think, fairly,	about what transpired below was that the respective	judges of the Federal Court brought their minds to
bear on this material and they concluded - the majority of them - that there were reasonable grounds that could have supported the conclusion to which the delegate
came. The DORS Commitee also applied its mind to
the matter - a specialist committee that is
set up to assist the Minister and advise him in this
matter. It concluded that there were no grounds upon which the applicant was entitled to succeed in his attempt to obtain refugee status. Again, in our
submission, that is indicative of the fact that
different minds, acting reasonably, can come to
different conclusions on that matter and that is simply
not enough to succeed on the ground of unreasonableness.

BRENNAN J:	Not if there is a consensus as to the issues to which
they should direct their attention, but if there is no consensus on that, then it is a different question, is
it not?

MlT9/9/VH 20 9/12/88

MR TRACEY:  Clearly, that is so, Your Honour~,yes. But it

could also be said that the matters relied upon by

my learned friend that were addressed by the Full Court

in the · joint judgment at pages 219 to 220 of the
appeal book, which are said to be indicative of a
departure from a proper construction of the eonvention

do not, in fact, in any sense, depart from that

Convention because what is there being addressed is

an assessment made by the delegate of claims made by

the applicant in support of his assertion that he

would be likely to be subjected to persecution upon his

return to China. That can be illustrated shortly by

one example:  one of the things that he told the

interviewers when he was given a full - and this must

be said - he was given two long interviews with the

assistance of an interpreter on both occasions. He

was given every opportunity to put all the reasons
he wanted to advance in support of his application for
refugee status.

One of the things that he said in the course of

the interview was that he wished to claim refugee
status on the basis of fea:r of persecution due to his
political opinion. The delegate tested that and he

tested it by asking the simple question, "Well, how

do your political views differ and depart from those

of the present government in China?" And the applicant

was unable, in any way, to articulate any differences.

Now, my friend says, well, that is therefore indicative

that the Federal Court and the delegate had had regard to an irrelevant consideration. On the contrary, what

was being done was an assessment of an assertion made

in support of a claim; it was found wanting. In our

submission, it was found wanting on a reasonable

basis although that basis may be one upon which

different minds may come to different conclusions.

So that we would submit that, on the basis on

which this matter was argued below and even on the

basis that is now agitated, that there is no ground

upon which special leave ought to be given and we would

be particularly concerned, of course, if special leave

was to be given in circumstances in which issues that

are now sought to be agitated in this Court had not

been agitated below and, of course, this Court therefore

lacks the advantage of the reasons of the judges below

on these questions. If the Court pleases.

BRENNAN J: Yes. Mr Dwyer, have you anything to say in reply?

MR DWYER:	If the Court please, all that I desire to say is that there is no embarrassment of any kind in the Court now considering the matters which are sought to be
ventilated.  The matters of fact are all apparent in
the papers. No question of fact was, in fact, decided by the court below and the importance of the questions that are involved in this matter is such that the
Court ought entertain them.

MlT9/10/VH	21	TRACEY	9/12/88
Chan

BRENNAN J:  But is it not the problem here - we have important

questions, particularly perhaps arising under

paragraph C(S) and the court below was not directed

to any of the literature, it would seem, which bears

upon that subject to which you have drawn our

attention here today.

MR DWYER:	No, it was not.
BRENNAN J:	We have not the benefit of their consideration of

any of the questions which you would, on this appeal,

seek to agitate and nobody in the courts below has

directed their minds to the issues which you say,

on the true construction of the Convention, would now

arise. It is not a promising foundation for special

leave when the ground is changed after the courts below

have done their work and you then come here seeking

special leave to appeal, on a question of such

importance.

MR DWYER:  Yes, I take the force of what Your Honour says, but

it is submitted that while a consideration ought not

be·a finally determinative consideration, because

there are many persons whose refugee status is being

determined under the system of which this case

represents a sample and it,is submitted that, in fact,

in many ways the entire system that is in operation

is an inappropriate one which is yielding improper

results. It is important that that matter be addressed

and addressed at an appropriate level.

So far as my learned junior and I have been

able to discover, the High Court has not dealt with

this question previously. - - -

BRENNAN J: Nor has any other court.

MR DWYER:	- - - in Australia. There is available a consideration
of a number of these issues both in England and in
the United States and in Canada.  Some of the aspects
of the matter have been determined at first instance in the Federal Court in Australia, in the SINGH case, but there is not, if the matter could be put this way, there is not any dearth of reasoned consideration of the matter so that things will be able to be put before the Court at an appropriate level, if is submitted. The circumstances otherwise are that, not
only will Mr Chan suffer from the way that the system
has dealt with him but that others will continue to
suffer in the same way.
BRENNAN J:	The Court will grant special leave to appeal in this

matter.

AT 3.48 FM THE MATTER WAS ADJOURNED SINE DIE

MlT9/ll/VH	22	9/12/88
Chan