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

The applicants, Mr Chan Yee Kin (a citizen of the People's Republic of China), his de facto wife Ms Soo Cheng Lee (a citizen of Malaysia), and their Australian citizen child Kelly Kar Chun Chan, sought special leave to appeal to the High Court of Australia. The core dispute concerned whether Mr Chan qualified as a refugee under the Convention and Protocol relating to the Status of Refugees, a determination that had implications for the potential deportation of the family and the disruption of their family unit. The proceedings before the Federal Court had involved both deportation matters and the refugee status question, with the application to the High Court being restricted to the latter.

The legal issue before the High Court was whether Mr Chan was a refugee within the meaning of the Convention and Protocol. This required determining if he was outside the People's Republic of China due to a well-founded fear of persecution for reasons of political opinion, and consequently unwilling to avail himself of the protection of that country. The delegate had determined that Mr Chan was not a refugee, a decision that Mr Justice Keely of the Federal Court found could not be reasonably arrived at. However, the Full Court of the Federal Court overturned Mr Justice Keely's view, holding that the delegate's determination was reasonably open.

The Court was required to consider the test for refugee status as laid down by the Convention, which necessitates no more than a reasonable degree of likelihood or a serious possibility of persecution if returned to the country of origin, as supported by the House of Lords decision in *R v Secretary of State* [1988] 1 All ER 193. Mr Dwyer, for the applicants, sought to argue that, given Mr Chan's history, the only reasonable conclusion open to the delegate was that Mr Chan had been persecuted. The factual background included Mr Chan's exile to a distant area in China in 1969 for hard labour.