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

[1989] HCATrans 74

, ....

~

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M9O of 1988

B e t w e e n -

CHAN YEE KIN

Appellant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

Office of the Registry

Melbourne No M91 of 1988

B e t w e e n -

SOO CHENG LEE

Appellant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

Office of the Registry

Melbourne No M92 of 1988

B e t w e e n -

KELLY KAR 'CHUN CHAN

Chan(2)

Appellant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH J

C2T 1 /1 /ND 1 6/4/89

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 APRIL 1989, AT 10. 15 AM

Copyright in the High Court of Australia

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

my learned friend, ,MR B.A. KEON-COHEN, for the

appellant in each case. (instructed by

John E. Ketelhohn)

MR F.H. CALLAWAY, QC:  May it please the Court, I appear

with my learned friend, MR R.R.S. TRACEY, for

the respondent in each of the appeals.

(instructed by the Australian Government

Solicitor)

MASON CJ:  Yes, Mr Dwyer.

MR DWYER: If Your Honours please, if I could have handed up to the Court the outline of argument in the

matter.

MASON CJ:	Thank you.
MR DWYER:	May it the Court please, this case concerns
a determination which was made on 21 August 1986
by Mr Richardson as delegate of the then Minister of State for Immigration and Ethnic Affairs
that Chan Yee Kin did not have the status of
refugee within the meaning of the convention
relating to the status of refugees that was
laid down at Geneva on 28 July 1951 or of the
protocol relating to the status of refugees
that was laid down at New York on 31 January
1967.

( Continued on page 3)

C2T 1 /2/ND 2 6/4/89

Chan(2)

MR DWYER:  (continuing): The determination was made under

section 6A(l) of the MIGRATION ACT 1958, the relevant

paragraph being subparagraph (c). It is submitted

that, as such, as was indeed agreed by the

respondent at the hearing bE:fore Mr Justice Keely

it was a decision to which this Act applies within

section 5(1), ADMINISTRATIVE DECISIONS{JUDICIAL

REVIEW)ACT 1977, and the authority that is relied on

for that proposition is the MINISTER FOR IMMIGRATieN

AND ETHNIC AFFAIRS V MAYER, (1985) 157 CLR 290.

I should tell the Court that I was asked on the special leave application that question by

Mr Justice Brennan - - -

MASON CJ:	Yes.
MR DWYER:	- - -and I made a mistake in the answer that I gave

to His Honour. I ought to have referred to MAYER's

case and I did not. I referred, indeed, to a case

OF GUNALEELA V MINISTER FOR IMMIGRATION AND ETHNIC

AFFAIRS, and GUNALEELA, in the circumstances of

that case, which was a person being, in effect,

turned round at the airport or being deemed not to

have entered Australia - - -

MASON CJ: Well, we need not be concerned with that.

MR DWYER:  If Your Honour pleases. I would pass then to the

question of the meaning of "refugee" contained in the convention as amended by the protocol.and one turns to the convention itself which is contained

in the appeal book. The convention is in the appeal

book commencing at page 22.

(Continued on page 4)

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Chan(2)

MR DWYER (continuing):  The definition is to be found at

page 24 in subparagraph (2) at the top of the page.

As it is set out there, the definition reads:

As a result of events occurring before

1 January 1951 and 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 -

the remaining parts of the definition are not

relevant. The effect of the protocol which is also

contained in the appeal book immediately following

that document at pages 43 and the following pages
is to remove those qualifying words "as a result

of events occurring before l January 1951" so that

the definition for the purposes of the MIGRATION ACT

becomes simply one who "owing to well-founded fear

of being persecuted" and so on.

The question for determination by the Minister's

delegate under the section was accordingly, in

deciding whether Mr Chan had the status of refugee

within the convention and protocol, whether he was
outside the People's Republic of China owing to a

well-founded fear of being persecuted and the

relevant reason that was relied on was reasons of

political opinion and and was owing to such fear
unwilling to avail himself of the protection of that

country.

(Continued on page 5)

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Chan(2)

MR DWYER (continuing):  Now, the first point that is made

about a consideration of this matter is that formal

determination of refugee status is declaratory,
not constitutive, and the authority for that

proposition is Goodwin-Gill, The Refugee in

International Law, where the proposition appears at

page 20 on the fourth lini of that page:

In principle, a person becomes a refugee

at the moment when he or she satisfies the

definition, so that formal determination

of status is declaratory, rather than

constitutive.

The remaining words in the sentence are not, I think, material and I will not trouble the Court with them. In

approaching this declaratory determination and

in ·considering the convention under which it is to

be made, the first proposition is that in approachin~

the convention it is proper to have regard to the

established rule of international law, that

preparatory work may be resorted to

for the purpose of interpreting a treaty. I refer

for that principle to a passage in Lauterpacht's

International Law and O'Connell's International

Law. It may perhaps assist the Court if I read

the particular sentence in Lauterpacht at page 363:

It may now be regarded as a settled principle

of interpretation of treaties that tribunals,

international and national, will have recourse,
in order to elucidate the intention of the

parties, to the ~ecords of the negotiations preceding the conclusion of the treaty, the

minutes of the conference which adopted the

treaty, its successive drafts, and so on.

This is the so-called preparatory work of the

treaty.

(Continued on page 6)

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Chan(2)

MR DWYER (continuing): In addition to those two.works

I would also refer to the assertion to similar

effect in the useful article by Cox, "'Well-founded

Fear of Being Persecuted' : The Sources and Application
of a Criterion of Refugee Status" in the Brooklyn

Journal of International Law where the same point

is made at page 333 - I am sorry, the article is

at page 333; the point is made at page 336. It is

in the bottom footnote on that page where the

proposition is supported by reference to

Oppenheim's International Law.

The second point in terms of how the treaty

is to be approached is to consider the use which

it is appropriate to make of the Handbook on

Procedures and Criteria for Determining Refugee

Status published by the United Nations Office of the

United Nations High Commissioner for Refugees.

The current version of that is dated Geneva,

September 1979. The submission is that courts

should appropriately use that handbook to

assist in giving content to the obligations

that the convention and protocol established.

If I could in that regard refer the Court to the

American decision, IMMIGRATION & NATURALISATION

SERVICE V CARDOZA-FONSECA, (1987) 94 US Supreme

Court Report L Ed 2d 434. The passage that is

of particular assistance is at page 452.

The reference here is to the decision of

Mr Justice Stevens, which was the leading decision

and in which he was joined by Justices Brennan,

Marshall, Elackmun and O '-Connor, but it is

actually from the judgment of Mr Justice Stevens.

(Continued on page 7)

C2T5/l/JM	6	6/4/89
Chan(2)

MR DWYER (continuing): In the left-hand colunm on page 452,

the paragraph immediately above the footnotes:

In interpreting the Protocol's definition

of "refugee" we are further guided by the

analysis set forth in the Office of the

United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for

Determining Refugee Status (Geneva, 1979).

Then, one goes to footnote 22:

We do not suggest, of course, that

the explanation in the UN Handbook has the
force of law or in any way binds the INS

with reference to the asylum provisions of

section 208(a) -

which is the American provision incorporating the

definition.

Indeed, the Handbook itself disclaims such

force, explaining that "the determination

of refugee status under the 1951 Convention

and the 1967 Protocol ... is incumbent

upon the Contracting State in whose territory

the refugee finds himself."

Then, there is a reference to that quotation in the

handbook and then His Honour goes on:

Nonetheless, the Handbook provides significant

guidance in construing the Protocol, to which

Congress sought to conform. It has been widely

considered useful in giving content to the obligations that the Protocol establishes.

MASON CJ:	What does that mean, Mr Dwyer?
MR DWYER:	It means that, although it is not strictly binding

upon the Court, the Court ought look to it as a source

for giving content to the treaty obligations.

There is argumentation for that view in the article

by Professor Hyndman of the University of New South

Wales which is contained in (1987) 9 Human Rights

Quarterly 53. Professor Hyndman says:

The Office of the United Nations High Commissioner for Refugees (UNHCR) is given

the mandate of the United Nations to protect

refugees. This office has recommended that

more states establish determination procedures

and that the procedures that are established

satisfy basic requirements. To assist states

in fulfilling these recommendations, UNHCR has issued a book "for the guidance of governments ... relating to procedures and criteria for

refugee status." All states parties to the 1951 Convention
and 1967 Protocol tm.dertake to cooperate with UNHCR in the
exercise of its ft.mctions, and, in particular, to facilitate

its task of supervising the application of these instnn:rents.

C2T6/l/SH	7	6/4/89
Chan(2)

MR DWYER (continuing):

Accordingly, if they are to abide by this
undertaking, the states parties to this

Convention and Protocol should be guided

by the UNHCR Handbook when hearing

applications for refugee status.

That is the reason in international law why the

work ought be used to give guidance to the

meaning of the convention.

DAWSON J: If it is not a source it can only be an

authoritative view of persuasive value.

MR DWYER: Quite so, Your Honour. I do not seek - as the

supreme court noted, it is not something that binds the court in any sense. It can only be

persuasive.

I would now desire, against that background, to take the Court to several of the concepts

which are contained in the definition and the	first of them is that of 11persecution" and it may
be appropriate to begin with what is stated in
the handbook in paragraph 51 regarding "persecution". Paragraph 51 which appears on
page 14 of the handbook says that:

There is no universally accepted

definition of "persecution", and various

attempts to formulate such a definition

have met with little success. From

Article 33 of the 1951 Convention -

tha t is the refoulement provision in the treaty

and the refoulement provision in the treaty

appears at page 33 of the appeal book and perhaps

as it is referred to I ought	read that to
the Court:

No Contracting State shall expell or

return ("refouler") a refugee in any manner

whatsoever to the frontiers of territories

where his life or freedom would be

threatened on account of his race, religion,

nationality, membership of a particular

social group or political opinion.

So the handbook, by reference to that article

in the convention, draws the inference that a

threat to life or freedom, on account of:

race, religion, nationality ..... political

opinion -

C2T7 /1 /ND	8	6/4/89
Chan(2)

or -

membership of a particular social group -

is always persecution. Other serious violations

of human rights, for the same reasons, would

also constitute persecution and Grahl-Madsen

the widely recognized authority on the topic

in his work The Status of Refugees in International

Law, volume 1, gives some consideration to the

meaning of the notion of persecution at

page 188 and the following pages.

( Continued on page 10)

C2T7/2/ND	9	6/4/89
Chan(2)

MR DWYER (continuing):  I would refer the Court in.particular

to what is said at page 193, which is in similar

terms to what is said in the handboo~. He refers

there to what is said in the handbook and if one
turns to page 201 he endeavours to set out six

measures or sanctions whicl1 he concludes, after

his consideration to various authorities, constitute

persecution; it is in the middle of page 201:

We may conclude that there is precedent for
considering the following measures or sanctions

'persecution' in the sense of the Refugee

Convention, provided that the circumstances

warrant it:

(1) Threats to a person's life;

(2) Imprisonment or other forms of detention

or internment for a period of three months or

more, it remaining an open question whether

deprivation of physical freedom for shorter
periods may constitute 'persecution'; however,
deprivation of liberty for 10 days or less has

been deemed not to amount to 'persecution';

(3) Numerous arrests or summonses for

interrogation;

(4) Removal to a remote or designated place within the home country -

that is something that has application to this case -

(5) Infliction of bodily harm and serious

threats to a person's health;

(6) Extradition to a country where the person

may be subjected to measures mentioned under

(1) or (2).

And, of course, imprisonment for a period of three months or more is also a factor that is relevant

in this case.

MASON CJ:  These six factors are all distilled from the cases previously examined by the author, are they?

MR DWYER:	Yes, they are, Your Honour.
MASON CJ:	And are they all cases on the convention?
MR DWYER:	Well, I have some difficulty in answering that,

Your Honour, because some of them are in German

and I do not have that facility to read German, but I believe them to be cases on the convention. The

whole book is a book considering the convention and

it is certainly my understanding that they do relate

to the convention. There is a similar statement to
the general one concerning fear of deprivation of
life or physical freedom in another standard work,

Goodwin-Gill, to which I have already referred the

Court at page 38, but I will not trouble the Court

C2T8/1/MB	10	6/4/89
Chan(2)

with a reading of that passage. There is further

discussion of the matter, I should say, in other

parts of that work, Grahl-Madsen, and there is a

statement to a similar effect in the article by

Professor Hyndman to which I have referred the Court.

The next matter which I should raise with the Court is

this. the appeal book contains a document which is

described as Australian Guidelines for the Determination

and Processing of Refugees. It begins at page 48

of the appeal book and it continues through to

page 77 or thereabouts, perhaps a little further,

page 84.

MASON CJ:	What is the status of these guidelines?
MR DWYER:	Well, they may be regarded as a policy document

prepared by the Department setting out detailed

guidances to how the determination of refugee status

ought be approached. They, I think, have no

higher standing than that and indeed although they

were in evidence before His Honour Mr Justice Keely

and although various matters were discussed there

in relation to them, as if they were the relevant

guidelines, my learned friend has informed me this

morning that his instructions today are that these

guidelines are not used in determining the question

within Australia, they are only used in determining

the question outside Australia.

(Continued on page 12)

C2T8/2/MB	11	6/4/89
Chan(2)

MR DWYER (continuing): His instructions are that what is used

in determining the question inside Australia is

simply the handbook. So that, I suppose, creates

even more uncertainty as to what the standing

of these guidelines is. It is, in those circumstances,
perhaps appropriate if I not take the Court in

detail to what they say on this question, but

could I perhaps say this: paragraph A39 commences

a consideration of the c,onvention definition -

that is at page 59 of the appeal book and that

continues through to page 62 and there is an
endeavour in those guidelines to develop some

analysis of the meaning of .the words used in the
definition, including the meaning of the word,

"persecution."

DAWSON J:	Do they have anything to say about onus or proof?
MR DWYER:	Yes, those guidelines do say something about onus.
DAWSON J:	Where is that?
MR DWYER:	I will be saying something to the Court about that
in due course.

DAWSON J: All right.

McHUGH J: It is paragraph A36, I think.

DAWSON J:	Thank you.
MR DWYER:	Now, I had intended to take the Court to some other aspects involved in the definition before going to the question of onus of proof, if that is convenient to the Court. My learned junior· suggests that I ought draw the Court's attention jn particular to the fact that on page 62 the matter of political opinion is
given some considero.tion in guideline 55.
McHUGH J:	Just so I can get the context· clear: · par.agraph A36 of these
guidelines would seem to indicate that the Minister,
or his delegate, must prove beyond reasonable doubt
that a person is not a refugee; is that the effect of
it?
MR DWYER:	I would not quarrel with that approach. The way in
which I was going to invite the Court to approach the ffi'.:itter
was this: the handbook and, indeed, what the authors commenting on the convention have said is this. If
a person is able to give a coherent account which
is credible of the experiences which he suffered
which brings him within the definition of"refugee,"
then that at least raises a prima facie case and
if it is desired to say that there are additional factors above and beyond-what he said, whereby he is not a refugee, then all of these materials would

C2T9/l/VH	12	6/4/89
Chan ( 2)

indicate that that is something as to which, first of all

every assistance has to be given to the person	'
claiming refugee status so that the authorities
have got to take him to the material and, at the
very least, find out what he says about it.

McHUGH J:  That seems to contrast with the approach of the

United States Supreme Court	in CARDOZA-FONSECA
which seems to suggest that	he must show a
reasonable possibility.

(Continued on page 14)

C2T9/2/VH	13	6/4/89
Chan ( 2)

MR DWYER:  Yes, Your Honour, but the court there is, of

course, interpretting the particular American

statute and it is plain that the .statute interferes

with this question of where the onus lies. Indeed,

the American statute might in a sense, in terms

of proof, be considered quite restrictive and

far more restrictive than the convention is. It

is plain that different countries approach their

obligations under the treaty differently; some
countries adopt a very restrictive approach, others

adopt a much freer or more encompassing approach.

The textbooks make it plain - - -

McHUGH J:  But our statute directs us to determine the

question as to whether he has the status of

refugee within the meaning of the convention.

MR DWYER:  Yes.

McHUGH J: If there is such a division of opinion among

the contracting nations as to the meaning of

the convention, how do we go about determining

this?

MR DWYER:  It is submitted that it is not that there is

a difference of opinion as to the meaning of
the convention significantly; there is a
difference in the steps taken by different

countries to fulfil their international obligation.

The French are widely recognized as being very

welcoming to refugees, if I could put it that

way; no doubt for historical reasons associated

with the revolution and what has followed. Canada

for a long time adopted a very open approach to

refugees; the United States has adopted a more

restrictive approach. But none of those matters

turn on what the meaning of the definition is

under the convention; they turn on the extent to

which countries are prepared to honour their

obligations under the convention and the mechanisms

which they put in place within countries in order

to do that.

MASON CJ:  Mr Dwyer, could I ask you in the decision-making

process in this case, was regard had to the

guidelines, or not?

MR DWYER: It is impossible to say. In the statement of

reasons under section 13 there is no express
reference to either the guidelines or the handbook,

but that may be because the author is simply listing

specific documents - - -

11.ASON CJ:	Yes.
MR DWYER:	- - - rather than things which set up the general

criteria which is to apply.

C2Tl0/l/JM	14	6/4/89
Chan(2)

DAWSON J:  But no doubt you say the result indicates that

they did not?

MR DWYER:  Indeed, Your Honour, yes. Indeed the whole

thrust of our case is that having regard to the

guidelines, and the history which Mr Chan gave

of his experiences, it is plain that the
guidelines and the handbook were not properly

considered by the decision maker.

If I could go back to the question of

well-founded fear, it is plain enough that one

can start by noting that fear is a subjective

condition or state of mind. The history of those

words in the treaty is of some significance,

particularly in the facts of this case because

as appears from the argumentation set out by

Grahl-Madsen at page 176, and which is also set

out by Mr Cox in his article in the Brooklyn

Journal of International Law, the preceding

documents use the expression "persecution or

fear based on reasonable grounds of persecution".

(Continued on page 16)

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Chan(2)

MR DWYER (continuing): Grahl-Madsen asserts that a change

of meaning was not intended and he asserts that:.

The term 'well-founded fear' was understood by the Ad Hoc Contrnittee -

who actually drafted the 1951 convention -

to exist when 'a person has actually been a

victim of persecution or can show good reasons

why he fears persecution'.

He asserts that by reference to the United Nations

Document'Wbichisreferred to in the outline and in

Cox, adopt~ that line of argumentation at pages 339 -

McHUGH J: It think there is a - it is "good reasons" not "good

reason" in that quote.	I do not know that it makes
any difference.

MR DWYER:  I am not certain. It is at 176.

McHUGH J: Page 176 says "reasons".

MR DWYER:  Yes, I - thank you, Your Honour.

Now, in that - and it is perhaps not necessary for me to take the Court to the detail of what is set

out in Cox' article on the same point and one sees,

to and it is appropriate to refer to what is said in the

in the passage which I have referred the Court in

handbook in that regard, at paragraphs 37, 38, 41 and

42. Paragraph 38 contrnences the real analysis of the

matter but I would refer also to what is said in

paragraphs 41 and 42 and the guidelines, for whatever

they are worth, accept that approach as appears in

paragraph A39.

Now that, in the circumstances of this case,

highlights, in particular, the importance to be placed

on the actual persecution which Mr Chan had suffered

in China because, on the basis of that approach,

Grahl-Madsen, by reference to that preparatory

material, says that past persecution gives rise to

a presumption of future persecution and he says

that at page 176 also, about three-quarters of the

way down the page:

In other words: if a person has experienced

persecution, that may be considered prima facie
proof to the effect that he may again become a

victim of persecution should he return to his

home country, so long as the regime which

persecuted him prevails in that country.

C2Tll/l/SH	16	6/4/89
Chan(2)

But it is not an irrefutable presumption.

Then, on the next page, he makes a similar point,

at about the middle of the page where he considers

the sort of things that might constitute rebutting

that presumption:

Not only time spent - unmolested - in the

country of origin, but also other circumstances,

such as for example the negative prescription
(under a statute of limitations) of prosecution

for a political offence, may rebut the

presumption that past persecution indicates

well-founded fear of (future) persecution.

We shall not attempt to establish a catalogue of such circumstances, but will only add a

word of caution: if a person has really

experienced persecution, one should be

rather reluctant with respect to ruling out

the possibility or even likelihood of future

persecution, so long as the same regime

prevails in the person's country of origin.

And we certainly rely on that.

Now, there has been consideration in addition to CARDOZA-FONSECA. There has been consideration in the House of

Lords as to what is required to establish a

well-founded fear and that matter was considered in

REG V SECRETARY OF STATE, (1988) 2 WLR 92.

(Continued on page 18)

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Chan(2)

MR DWYER (continuing): It is perhaps convenient if I take

the Court to some passages in that case.. The

argument in this case was really as to whether it

was necessary to establish a real and substantial

risk that the applicant would be persecuted for

a conventior. reason if returned to the country

of his nationality and the view that was taken was that the applicant had to demonstrate a reasonable

degree of likelihood that he would be persecuted

for one of the reasons referred to in article 1A(2)

if he were returned to that country. But the case

is a case concerning the problem that has vexed

many countries, including Australia, concerning

Sri Lankan Tamils who have had difficulties in

being accepted in England and in Australia and

in other countries as being refugees, principally

because the experiences which they have suffered

have been regarded as being experiences arising out

of civil war or other disturbances which have been

happening in Sri Lanka, rather than persecution by

the authorities in Sri Lanka. That is the sort of

factual matrix in which the matter has been

considered by the House of Lords in this case.

In those circumstances, Their Lordships said that the appropriate test was whether the applicant

could:

.demonstrate a reasonable degree of likelihood

that he would be persecuted.

Our submission is that in a case where actual

persecution is established that what is said in

this decision by the House of Lords does not anoly;

that: the House did not approach the matter on the basis that

actual persecution had been established. Indeed,

they approached qr. the contrary basis, that there
was not evidence of persecution which had been
suffered by the person seeking refugee status and

devised that test in those circumstances. The

submission is that that is not the appropriate test

here.

If I could perhaps the take the Court to some
passages.	The matter is considered at page 97 by

Lord Keith of Kinkel. His Lordship, on that page,

deals with the question of whether circumstances

have ceased to exist and says that:

can only be one to be determined objectively,

in the light of any new circumstances
presently prevailing in the country of

the person's nationality.

I will be returning to that passage later in terms

of what is required if one seeks to rely on cessation

C2Tl2/l/VH	18	6/4/89
Chan ( 2)

of circumstances. But lower down on that page near

line G, His Lordship says:

The question is what might happen if he

were to return to the country of his

nationality. He fears that he might be

persecuted there. Whether that might

happen can only be determined by examining

the actual state of affairs in that

country. If that examination shows that

persecution might indeed take place then

the fear is well-founded. Otherwise it is

not.

That test cannot be satisfied on the material in this

case, it is submitted, because His Honour found, and

as was accepted by the Full Court, there was not

material available to the decision maker about the

actual state of affairs in China when Mr Chan's

case was being considered.

(Continued on page 20)

C2Tl2/2/VH	19	6/4/89
Chan(2)

MR DWYER (continuing):  His Lordship on the next page, at the

foot of that page, considers CARDOZA-FONSECA and

considers the problem about what well-foundedness

requires and refers to a passage in which

Mr Justice Stevens had said at page 453:

"'so long as an objective situation is

established by the evidence, it need not be shown

that the situation will probably result in

persecution, but it is enough that persecution

is a reasonable possibility.'"

Then there are some references to tests that have

been used:

"'a real chance that he will suffer persecution'";

(the) appropriate test is 'reasonable chance',

'substantial grounds for thinking', or 'serious

possibility. '"

Whichever test of that kind is used the submission here is that the past persecution suffered by Mr Chan

provides material which satisfies that test.

MASON CJ:  Mr Dwyer, it seems to me that in terms of the

belief that was held at the time that Mr Chan left

China is perhaps not a matter that is fundamentally

in issue in this case. The real question is what

really is the status of the matter or the position

having regard to the possible change of events since

then?

MR DWYER:	Yes, Your Honour.
MASON CJ:	Now, if that is so, is it necessary to spend

all that much time on this aspect of the case?

MR DWYER:  Perhaps not, Your Honour. It is perhaps not

necessary for me to take the Court in any detail	to what is set out in the outline in relation to
well-founded fear nor, for that matter, what arises
concerning the notion of political opinion, and
I will pass over those.

McHUGH J:  Well, before you do, supposing if he went back

he would be imprisoned, not because he currently
holds political opinion but because he had fled

the country or because he was _seen or perceived as _doing

wrong some years ago in leaving the country.	Upon
that hypothesis would he qualify as a refugee?

MR DWYER:  It is subrriitted, ye~, because if one approaches it on the basis that

he was a refugee by reason of political opinion when

he left in 1974, so that he fled by reason of what

was then happening to him by reason of his political

opinion, if, as he has been promised, he is returned

to China and imprisoned that imprisonment, if it

relates to the circumstances of his escaping detention

C2Tl3/l/MB	20	6/4/89
Chan(2)

when he left would still, it is submitted, be

imprisonment arising out of his political opinion, that is, it is consequential upon the fact that he

was previously being detained in internal exile and

being subjected to deprivation of liberty by reason

of his political opinion. There is a further factor

which is referred to in his material. He believes

that he would suffer detention also as what he

calls "a disgraceful deserter" and the authorities,

certainly Grahl-Madsen, contemplates that countries

which punish people simply for leaving might well

be regarded as countries which persecute people and

if the reason for leaving, we submit, relates to

his holding a political opinion then that punishment

would constitute persecution which arises out of

his holding a political opinion.

It is not necessary, it is submitted, that any

particular period of detention be expressly said

by the authorities to be dealing with him by reason

of political opinion. It is enough if one can see

that at the root of the matter,things falling within

that regard to page 96 of the appeal book, which is

the notion of political opinion, are what is involved.

one of the letters. These are letters from his

relatives in which they are drawing to his attention

matters that he might rely in trying to put together

his case. At line 20 what appears:

(Continued on page 22)

C2Tl3/2/MB	21	6/4/89
Chan(2)

MR DWYER (continuing):

Once I am sent back there, I believe I

would be definitely persecuted; at least

I will be given a crime of being a

treasonous deserter and defaming socialism.

There are other references in the letters and in

his records of interview as well. Yes, the phrase

"disgraceful deserter" appears in the letter

on page 94, about half a dozen lines from the

bottom.

McHUGH J:	Are these letters by him or to him?
MR DWYER:	Letters to him from his brother.  I am not

certain whether it is a brother in Hong Kong

or a brother in Macau but it is a member of the
family who has also left China.

Perhaps before going to what Your Honour the Chief Justice has identified as being the key question I ought to say something more about

this question of burden of proof which was raised

by Your Honour Mr Justice Dawson. The way to

approach the matter, it is submitted, is this,

the question to ask is; "How are the facts

concerning an applicant for refugee status to

be established?", because that is something which

must arise in the case of every refugee and Cox

points out, at page 340, what was required under

the IRO definition was fear of persecution for

which an applicant gave a plausible and coherent

account:

A person's own statement is the primary

basis of a determination, and the statement

must be accepted unless it is not plausible.

And he refers, at page 340 to the IRO manual
which sets that out - it is about a quarter of

the way down the page:

Reasonable grounds are to be understood

as meaning that the applicant can give a

plausible and coherent account of why he
fears persecution. Since fear is a subjective
feeling the Eligibility Officer cannot refuse

to consider the objection as valid when

it is plausible.

And then he goes on to develop that in the text.

The handbook deals with the matter in a similar

way at paragraphs 195 to 202 where under the
heading "Establishing the facts" the handbook

sets out that the primary source of the facts

will be, in the first place, the applicant himself

C2Tl4/l/ND	22	6/4/89
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and then be up to the person charged with

determining his status to assess the validity

of any evidence and the credibility of the

applicant's statements. There is then reference

to the general legal principle:

that the burden of proof lies on the person

submitting a claim. Often, however, an

applicant may not be able to support his

statements by documentary or other proof,

and cases in which an applicant can provide

evidence of all his statements will be the

exception rather than the rule.

( Continued on page 24)

C2T14/2/ND	23	6/4/89
Chan(2)

MR DWYER (continuing):  The Court goes on to explain that

in an explanation that would apply to Mr Chan.

In paragraph 197:

The requirement of evidence should

thus not be too strictly applied in view

of the difficulty of proof inherent in
the special situation i.n which an
applicant for refugee status finds himself.

Allowance for such possible lack of evidence

does not, however, mean that unsupported

statements must necessarily be accepted

as true if they are inconsistent with the

general account put forward by the

applicant.

That is a reference to a coherence criterion.

It is perhaps not necessary for me to set out

or read out to the Court all of what is said in

that and the paragraphs through to paragraph 202.

There is the heading "Benefit of the doubt" at paragraph 203:

After the applicant has made a genuine effort

to substantiate his story there may still be

a lack of evidence for some of his statements.	As
explained above, it is hardly possible for a refugee to "prove" every part of his case
and, indeed, if this were a requirement
the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however,
only be given when all available evidence has
been obtained and checked and when the examiner
is satisfied as to the applicant's general

credibility. The applicant's statements must

be coherent and plausible, and must not run

counter to generally known facts.

MASON CJ: It may not be necessary to take much account of

what is in the IRO manual, but is the IRO manual

material to which we can have regard in

interpretting the convention?

MR DWYER:  It is material which was under the forerunner

of the present treaty and is only relevant in

the way in which Cox and Grahl-Madsen would

say that what was done under the previous treaty

was desired to be carried forward to the present

treaty. That is the sense in which it is relevant.

It is perhaps material to point out to the Court that at page 103, where we are dealing with

the minutes of the DORS Committee dealing with

the situation, the representative of the United

C2Tl5/l/JM	24	6/4/89
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Nations High Commissioner on Refugees expressed the view that he:

Would give applicant the benefit of the doubt and grant him refugee status in

light of past activities.

But I would remind the Court that that representative does not have a vote on the DORS Committee so

that although he said that, the DORS Corrnnittee

still unanimously rejected the view that he

was a refugee.

I would refer the Court also, as well as to

those passages in the handbook, to what is
said by Professor Hyndman in the article in the

Human Rights Quarterly at pages 53 and 54. First

of all she refers to the handbook by a quotation

from paragraph 196 and then goes on:

While specifically not encouraging uncritical

acceptance of uncorroborated statements -

the High Corrnnissioner -

does urge that applicants be given the

benefit of the doubt in all appropriate

cases. Further, it is recorrnnended that a

wide range of circumstances should be taken

into account.

There is then a reference to paragraph 53.

Professor Hyndman goes on, on page 54:

These, then, are the general circumstances surrounding the determination of applicants

for refugee status. Although the onus of

proof is, in accordance with general -

legal -

principles, on the applicant for refugee status,

it is always necessary to bear in mind the

circumstances surrounding most such applicants

and the purposes of the Convention and Protocol.

Thus, an unduly stringent burden of proof should not be imposed upon people who,

by their very situation, are unlikely to be

able to provide much in the way of corroboration

and documentation.

(Continued on page 26)

C2Tl5/2/JM	25	6/4/89
Chan(2)

MR DWYER (continuing): Then, there is reference to the

desirability of taking other factors into account.

TOOHEY J:  Mr Dwyer, what is the complaint in the present case;

that the delegate did not apply correct criteria;

did not direct his attention to the handbook or that,

if he had done so, he could have only arrived at one

conclusion?

MR DWYER:  It is submitted that, if he had approached the matter

in the right way, he could only have arrived at one

conclusion and that, perhaps, can be put this way:

refugee and the question is what is to be made of that by the decision maker in 1986.

it was clear, on any view of the material, that when was a

The primary argument that we put is that once

he is a refugee he can only cease to be a refugee if
he can be brought within one of the cessation clauses

under the treaty and the decision maker does not refer
to that concept at all; that is, the notion of applying·

the cessation clauses in the treaty just is not

mentioned. Alternatively, it is said that, even if

one does not approach the matter as we say one should,
one simply says, looking at him in 1986, should one

say that he has a well-founded fear. The

decision maker was not sufficiently or did not place

sufficient emphasis on his past persecution as the

basis for that well-founded fear. He did not accord

the special status which all of the authorities would
agree should be accorded to past persecution in

deciding that question.

He was, apparently, simply disposed to say that

he may suffer some attention from the authorities on

return to China and, accordingly, that he did not

regard the fear as well founded.

TOOHEY J:  Do you say that the delegate should initially have

resolved for himself the question whether the appellant

was a refugee at the time he left China and that,

having resolved that favourably, as you would say, to

the appellant, then that status remained unless one
of the relevant events had occurred to deprive him

of that status?

MR DWYER:  Yes, that is the submission, Your Honour, yes.

TOOHEY J: Does the decision naker go through any of that sort

of exercise? I do not want to take you away from the

thread of your argument.

MR DWYER:  The nearest that he comes to it is this: he says,

C2Tl6/l/SH	26	6/4/89
Chan(2)

"I consider that the appellant had no r~al political

profile in the People's Republic of China. I noted

that he was unable to convey in detail his claim to

political differences" and so on. He then says, "I

accepted that he may have been discriminated against

to a limited degree, due to the apparent perception

the local authorities had of his family but I consider

that this did not amount to persecution within the

terms of the convention".	We say that is just clearly
wrong, on any view.

Then, he said, "I accepted the committee

members' views that while he may be the subject of some attention, having escaped from the area where

he was assigned in the People's Republic of China" - perhaps, in passing, I can say that the very fact of

that assignment in the People's Republic of China,

itself, constitutes persecution and so that is,

really, inconsistent with what he had said in the

previous paragraph - - -

TOOHEY J:  Yes. I understand that you say that that findine

was not warranted by any of the material but if, in

fact, it had been, would that have been a sufficient

inquiry by the delegates? In other words, if he had

decided - and let us assume for the moment correctly so - that the appellant did not have the status of a refugee when he left China, would that have been the end of the matter?

MR DWYER:  No. That would not have, he would still have had to

ask himself whether, at the time of the inquiry, he

held a well-founded fear of persecution for reasons

of political opinion. If I could put the matter

this way:  we say that the circumstances of the case,

because of the time lag that is involved, required

that one consider whether he was a refugee in 1974 and then, in looking at whether he is a refugee in

1986, bring that matter into account in the appropriate

way but it is certainly not the case that if one were

satisfied that he was not a refugee in 1974, that that

is the end of the matter. (Continued on page 28)

C2Tl6/2/SH	27	6/4/89
Chan(2)
MR DWYER (continuing):	The	question would still-remain:

was he a refugee by reason of having a well-founded

fear in 1986? Having said that, and that is

strictly in terms of the logic of the matter, I

would acknowledge that what is relied upon are the

experiences prior to 1974 together with some matters

of lesser consequence that happened since. I mean,

all that he could have pointed to, all that, on the

facts, Chan could have pointed to in ·terms of

subsequent events, is the fact that his mail is

opened by the authorities; the authorities go to

his village and question his sister as to -his ¾hereabouts, so

there is certainly some harassment by the authorities

but I would concede it would be difficult for him

to make out a case on facts of that kind standing
alone to satisfy a requirementQf awell-founded fear

of persecution.

TOOHEY J: Yes, thank you.

MR DWYER:	The explanation which Chan gives does not only depend upon his narrating a history of what happened to him.
It also includes an explanation for that history which initially was in terms of his activities, his
own activities during the cultural revolution but, in terms of a continuing thing, relates to his family being recognized or treated by the authorities as being an anti-revolutionary family, and he a member
of an anti-revolutionary family.  He puts that in
his material as a continuing thi~g which he believes, I think it could fairly be said, would always be the
case so far as the authorities are concerned. The
circumstances which gave rise to it was his father's activities with the Kuomintong before the communists
were victorious in China, his father having fled to
Hong Kong at the time that the corrmrunists were
victori ou.s.

The detailed account which he gives of the way

in which his mother, in particular, and members of

the family suffered after that; members of the family

having to wear a badge identifying them as being

an anti-revolutionary family; his mother being harassed

in her workplace and forced into early retirement.

He says that, so far as the authorities are concerned,

as it were, the state records always treat them in

that way as being members of an anti-revolutionary

family so that at any time when a form has to be

filled in, that is how they have to designate themselves

so far as the authorities are concerned. He would have

to rely on that general approach continuing as well as the--specific events that_ have happened in recent years

if one were to ignore the pre-1974 events so far as he -was

concerned.

C2T17/l/VH	28	6/4/89
Chan(2)

TOOHEY J: Well, you appear to be saying two things, and I

am not suggesting that they are inconsistent, but

one is that you look to the present position of

the appellant and apply the language of the

convention and, in deciding whether or not there

is a well-founded fear of being persecuted, you

can look at the entirety of the evidence, 1 including

the events at the time that he left China. But you
appear to be saying also that one looks at the
situation at the time that he left China, determines

whether he was then a refugee and, if he was, for

some reason that I do not fully understand, he

retains that status unless there had been some

disabling event, which is a different form of

inquiry although it may involve the same evidence.

What is it that requires that second approach?

MR DWYER:	Yes. Well, perhaps it is convenient if I turn to
that matter next and it appears in paragraph 14
in the outline. Now, the way in which the matter is put is by reference to what Grahl-Madsen says, first of all at page 177. It is in a footnote at the foot of that page:

It should be noted that once a person has

become a refugee he remains a refugee

until he falls under one of the cessation

clauses in the Convention.

The matter is considered in more detail subsequently
in the work, although the author refers to
chapter 4B but the matter is considered in

section 32. But I perhaps remind the Court that,

although Grahl-Madsen is divided up into something

that might be regarded as sections which, at this

part, are up to section 134, at the head of the

page one sees reference to such sections. On page 367,

where he commences his consideration cf cessation

clauses, the author calls it section 32.	So section 32
then continues for some considerable number of the

other sort of sections.

(Continued on page 30)

C2Tl7/2/VH	29	6/4/89
Chan(2)

MR DWYER (continuing):  Within that consideration of

cessation clauses if I could refer the Court to

page 369 under the heading "Exhaustiveness of

Cessation Clauses", he says:

It is generally agreed that the enumeration of cessation clauses in Article 1 C of the

Refugee Convention and in the second section

of Paragraph 6 A of the UNHCR Statute is

exhaustive. In other words, once a person has

become a refugee as defined in Article 1

of the Convention or Paragraph 6 A of the Statute,

he continues to be a refugee until he falls under

any of those cessation clauses.

McHUGH J:  Mr Dwyer, does this not mean the focus of your

attack on the invalidity of the decision has changed?

It is not so much that you rely on the decision being

unreasonable,do you, in that there has been a

misdirection of law on the part of the delegate,

has there?

MR DWYER:	I acknowledge there is a question as to whether unreasonableness will comprehend a misconstruction or
a misapplication of the convention.  The submission
is that it can; that unreasonableness, under
Wednesbury as it is commonly regarded, can include
many things including errors of law.
DAWSON J:	But it is six of one and half a dozen of the other. exclusion clauses are exhaustive the question is If the
really just whether he ceased to become a refugee?
MR DWYER:	Yes, that is so, Your Honour, and the way in which I would put the argument is this - - -
TOOHEY J:	Under the JUDICIAL REVIEW ACT you would not need

to resort to unreasonableness, would you, you would

rely upon one of the other heads?

MR DWYER:  Perhaps so, but they are not mutually exclusive

categories, it is submitted, Your Honour. Indeed,

unreasonableness can really be seen as being a

catch-all that will cover many of the others and

we would certainly urge the Court to treat it in

that way. But could I put the matter in this

way: if it is accepted that he became a refugee in

1974, if it is further accepted that once you are

a refugee you can only cease to be a refugee if

one of the cessation clauses applies to you and if

the delegate arrives at a view of the matter without

regard to that consideration and in circumstances

where it would not be said that any cessation clause

applies, then that can readily be described as an

unreasonable decision, it is submitted.

C2Tl8/l/MB	30	6/4/89
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McHUGH J:  But the difficulty I have between the two concepts

in this case is that it may be that applying the

correct test, it is not an unreasonable decision,

but the delegate never applied the right test.

MR DWYER:  Well, there may be cases in which, because there

is sufficient doubt about what the outcome on applying

the right test to the facts of the case are,where,

with respect, it might be appropriate to do that.

But this is not such a case, it is submitted.

It is submitted that this is a case when once one

comprehends the facts of the matter only one outcome
was open to the delegate, that is, it is thus removed

from the category of cases where differing minds might

take different views of the law and the application
of the law to the facts and it is taking it into

the category where only one conclusion was properly

open to the delegate.

Now, if I could turn then to the cessation clause

itself, and that appears at pages 24 and 25 of the

appeal book. On page 24, two-thirds of the way down

the page at line 35:

C. This Convention shall cease to apply

to any person falling under the terms of

Section A if -

and then we have four matters which are not immediately

material, and we turn to number (5) at the top of

page 25:

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.

(Continued on page 32)

C2Tl8/2/MB	31	6/4/89
Chan(2)

MR DWYER (continuing):  Then there is a proviso· which

does not apply to this case. There is a proviso

dealing with what I could perhaps describe as of refugees specifically described in A(l) which appears on page 23 of the convention and they

include, for example, Jews who were subjected

to persecution by the Nazis and the explanation

that is given in the texts of that proviso is

that the experiences which had been suffered

by such people - by the section A(l) people -

had been so grave that it was regarded by the
convention makers that even if circumstances
had ceased to exist in their country of origin

they ought still be regarded as refugees and

if one takes the case of Germany, somebody who

had as a victim of Nazi persecution fled Germany,

even though that is now a democratic State in

which Jews are not persecuted, such a person

ought not be required to return to Germany if

he regards his past history as a compelling reason

arising out of previous persecution for feeling

that he just does not want to live in Germany

any longer. That is really the sort of thing

that the proviso is addressed to.

If we could go back to the relevant cessation clause itself, what would be required would be -

if the cessation clause were to apply, would

be material upon which the delegate could find

that the circumstances in connection with which

he has been recognized as a refugee have ceased

to exist.

MASON CJ:  What do the words "which has been recognized"

mean?

MR DWYER:  There is a conundrum there, Your Honour. The

question is, "Recognized by whom?" and "Recognized when?", and because the convention does not	say by whom such recognition is to be afforded	in order for the cessation clause to apply and
I suppose one would bear in mind that perhaps
ultimately questions between the contracting
parties as to this convention can only be decided
by the International Board of Justice. That cannot be, clearly, what is required.

DAWSON J:  You can only cease to be a refugee if you have

been one.

MR DWYER:  That is right. That is what we submit and that

is what all the authorities say and all the textbook

writers simply ignore the presence of those words,

"He has been recognized as a refugee".

C2T 19 /1 /ND	32	6/4/89
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DAWSON J: It may be recognition by the body that is

considering the cessation.

MR DWYER: It might be. It could mean simply entitled

to be recognized rather than simply recognized
but could we submit this: if the cessation clause

is limited to persons who have been recognized

and one is dealing with the case of a person

who has not been recognized then the general

principle would continue to apply that he

continues to be a refugee. That is, the effect

of limiting the operation of that cessation clause

to recognize refugees would mean that whatever

happened so far as the circumstances in the country

of origin were it would not matter to a

non-recognized refugee because he is still a

refugee.

The convention does not provide any means

for him ceasing to be a refugee so it is perhaps
for that reason that the textbook writers have
all approached the matter on the footing that
the words, "He has been recognized", are not

to be given any particular meaning and the cessation

clause is to be applied generally to refugees

whether they are recognized or not.

MASON J: · I notice that the expression is used in (5)

and (6) and in each case there is a reference

in the proviso, to:

a refugee falling under Section A(l)

of the article -

does that tell us anything?

(Continuing on page 34)

C2Tl9/2/ND	33	6/4/89
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MR DWYER: It might, Your Honour. It might mean that

persons falling under A(l) are persons who

have been recognized as refugees because that

is what those specific arrangements and

conventions and protocol did. It could be that

it is because the proviso is there that those

words are included in the cessation clause.

There was a matter again of the history

of the treaty. It appears from the textbooks that in its forerunners those words were also

there, although that has not persuaded any

of the textbook writers, as far as we can see,

to give any analysis of their meaning. That

would certainly be giving work for them to do.

That would provide a basis perhaps for saying

that recognition is only material in section A(l)

cases, but one is straining the words of the

convention to do that and there is no easy

solution. We are content to have the cessation

clause be regarded as one which operates so

far as Mr Chan is concerned if the facts were

there, that is we say that what the delegate

ought to have done, having recognized him as

a person who was a refugee in 1974, is say,

"Well, he can only cease to be a refugee if

one of the cessation clause applies.	The only
clause which might apply is 5.	Now, where are

the facts on which I can find that circumstances

in connection with which he is a refugee have

ceased to exist7" because we say that there was

no material before him which provided any

basis on which he could make such a finding.

TOOHEY J: If that is right, then the inquiry that the

delegate carried out is not a contemporary
inquiry except for the purposes of determining

whether there is any cessation provision that

has come into operation. In other words, the

delegate, I take you to be saying, must cast

his mind back to the time when the person left

the country, decide whether he was then a refugee

and if he was, he continues to be unless some

disqualifications occur.

MR DYWER:  Yes, Your Honour.

TOOHEY J: Yat that does not lie very easily with

paragraph A(2), does it, which speaks in the

present tense of a person who is:

unable or ..... unwilling -

for the reasons that are expressed there -

to avail himself of the protection of

the country.

C2T20/l/JM	34	6/4/89
Chan(2)

It is generally cast in the present tense as
if you are looking at the position of the person

at the time his status arises for consideration.

MR DWYER:  I note what Your Honour says, but it would

carry with it the consequence that a refugee

would continually have to re-establish his

status and the texts and the other works on

the convention regard that as being inappropriate.

Refugees, once they are in truth refugees, are

entitled to have a continuity about their status.

They do not have to be continually re-establishing their claim to be a refugee.

McHUGH J:  But does that really help you? Does not the

context tell against you? Is not the, scheme
of this provision this: that if you fall within

the definition of refugee in A(l) or (2), then

you become subject to obligations and the

contracting country becomes subject to obligations
in respect to you and those obligations continue
unless you come within C(l) to (6)? In other

words, is not C(l) to (6) dealing with a

situation where a person is already recognized

as a refugee for the purposes of this convention,

that is to say, he is a person who has already

become subject to obligations an.din respect of

which the country has become subject to obligations?

MR DWYER:  The submission is that if one is within

the terms, that is if one, as a matter of fact,

satisfies the definition then one is entitled, in

so far as an individual can be entitled, to the

benefit of the convention whether there has

been any formal recognition of that or not.

(Continued on page 36)

C2T20/2/JM	35	6/4/89
Chan(2)

MR DWYER (continuing): That is certainly the way in which

the textbooks treat refugees and it is~ - -

DAWSON J:  But if you can presently establish that the facts

which would either entitle you to the refugee status

do not exist now, you either are not a refugee or you

cease to be one because they are the same facts. It

is only if you cannot presently establish those facts

then it is relevant to go back and say, "Well, I was

a refugee" and you cannot prove any cessation.

MR DWYER:  Yes, I take Your Honour's point. The temporal

element in this particular case does give rise to

complications which would not arise if one were making

the determination at the very time when the person was

fleeing. So those cases look as if -

DAW .... , ,~-; J:  No, that is not quite the point I am trying to make.

If you are looking at the situation now and the facts

do not exist which are required to exist either by

A(2) or by C(5); they are the same facts so you

just say, "Well, you are not a refugee either because

you were never one or because you have ceased to be

one", it does not matter. But, if you cannot presently

establish those facts or that those facts do not exist,

you,still can go back and say, "I was a refugee and

there is nothing to show that I have ceased to be one".

Is that not the situation?

MR DWYER:  Yes, Your Honour, and we say here, of course, that

that is exactly the situation; that the facts are

there which establish that he was a refugee at least

which, we say, also show that he is still a refugee

and there were no facts which would show that the
circumstances which made him or make him a refugee

have ceased to exist.

McHUGH J: But the introductory words of C indicate, do they

not, that it is not an exception to the definition

of "refugee" but that its purpose is to say that the

convention no longer applies to a person who falls

within it; that is, within C.

MR DWYER:  Yes, well, that is certainly what the literal words

say or the literal meaning of the words that are there

is but that is not the way in which an author like

Grahl-Madsen approaches the matter; ~hat is, he

says more than once, as I have taken the Court to,

that once you are a refugee, you continue to be one

unless you fall under one of the cessation clauses

and his discussion and analysis of that is not

limited to persons who have been recognized as

refugees but treats persons who are refugees

generally. But it is, of course, in no way essential

to Mr Chan's case that one adopt the analysis he was

a refugee in 1974 and that there was nothing to show

C2T21/l/SH	36	6/4/89
Chan(2)

that the cessation clause has been satisfied

and so he is still to be regarded as a refugee.

He does not depend upon that analysis being

adopted although we say it is the appropriate

one to adopt in these circumstances because we

say that simply treating the question now as if,

for the first time one has to ask does he satisfy

the treaty definition, so that one forgets about

the cessation clause, still he clearly does and he does by reference of what happened to him in

the past and by reference to the fear which he

well-foundedly holds because of what has happened

to him in the past.

McHUGH J: Yes, but your case is obviously much stronger, is

it not, if this cessation argument is correct because

you have got a much stronger case in support of the
proposition that he was a refugee and it then may

be doubtful whether the circumstances have changed

sufficiently to deprive him of that status and may

be it is another question altogether, if you ask

yourself whether he was a refugee within A(2) in

1986 or 87?

(Continued on page 38)

C2T21/2/SH	37	6/4/89
Chan ( 20

MR.u..JYER.:  One has to acknowledge that years have.passed.

I mean, it was 12 years when the decision maker was

considering this matter since he had last been

subjected to persecution. It was also 12 years since

he had last been in China and that must inevitably

give rise to the question whether he is still to be

regarded as a refugee, however one formulates it.

We are in a stronger position, as Your Honour

says, if the analysis which we claim or for which we

argue that we were a refugee then and the cessation

clause cannot be shown to catch us, so we are still a refugee. We are clearly in a stronger position then.

That is the point of seeking to rely upon the argument.

But it is not of the essence that we succeed on that

argument because we say that as there were no facts

before the decision maker as to the present circumstances

in China, as they would apply to Mr Chan, he had nothing

but Mr Chan's past experiences to take into account

when he made his decision.

McHUGH J: What do you mean by "circumstances"? Are we talking

about specific circumstances such as particular

policies or can the delegate take account of general

knowledge and matters that people would - - -

MR DWYER:  There is a standard proforma letter which the

Department uses in these cases and which was used in

this case. It appears at page 106 of the appeal book

and it includes the sentence, at line 25:

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 one can see from the reported cases that it is a

proforma letter. It is the one that they always send

out and with the blank filled in in the particular

case to specify the country of origin.

Now, His Honour Mr Justice Keely found that

despite what is said in that letter there was not

detailed advice and information available to the

committee as is there set out. That appears at

page 217 of the appeal book. On page 217 he sets

out part of the submission that had been made by the

respondent about that letter, that is, the

Department's submission was the:

"letter is clearly in standard form. It

does not indicate that the DORS Committee
had any information which it should have

shown to the Applicant."

And His Honour treats that in the following way:

C2T22/l/PLC	38	6/4/89
Chan(2)

Accepting that submission by the respondent

Minister, it follows from the absence of any

"detailed advice and information ... concerning

the general situation prevailing in China ... "
that the only significant material before the

delegate, dealing with the question whether the

first· named applicant ~as likely to be persecuted

should he be returned to the Peoples' Republic

of China, was the material supplied by the

first named applicant.

And that finding by His Honour was accepted by the

Full Court and that appears at page 251, line 15.

His Honour accepted that the DORS Coll'llIJ.ittee did

not have before it any "detailed advice and

information .... concerning the general

situation prevailing in China .... " -

and then the court goes on and sets out what His Honour

had said, but it is plain that the court is accepting

that.

Now, exactly what ought be before a decision maker

on a case of this kind was given some consideration by
the House of Lords in REG V SECRETARY OF STATE FOR THE
HOME DEPARTMENT, (1988) 2 WLR at page 97, to which I

referred earlier, where Lord Keith says:

(Continued on page 40)

C2T22/2/PLC	39	6/4/89
Chan(2)

MR DYWER (continuing):

The question whether such circumstances

have ceased to exist can only be one to

be determined objectively, in the light
of any new circumstances presently prevailing

in the country of the person's nationality.

And then he says, at line G:

Whether that might happen -

that is, whether he might be persecuted -

can only be determined by examining the

actual state of affairs in that country.

And that is taken up, I think, also, by
Lord Goff on page 104 - it is near E:

In truth, once it is recognised that the expression "well-founded" entitles the

Secretary of State to have regard to facts

unknown to the applicant for refugee status,

that expression cannot be read simply as

"qualifying" the subjective fear of the

applicant - it must, in my opinion, require

that an inquiry should be made whether the

subjective fear of the applicant is

objectively justified.

And I think the rest of His Lordship's discussion

contemplates the nature of the inquiry. Earlier

on at line D His Lordship had said:

On this approach, the Secretary of State

is required to ask himself a most unreal
question. His appreciation is in any event

likely to be coloured by his own assessment

of the objective facts as ascertained by

him;

That is all in a construction argument but it

sheds some light on the inquiry that would be

needed to be made concerning the actual situation

in China before a finding that Mr Chan would

not be likely to be persecuted there could be

arrived at.

TOOHEY J:  That would assume the existence of some credible

material from the applicant, would it not?

MR DWYER:  Yes, but once one has got that credible material

then there would need to be further material

of the kind that is indicated before a proper

decision could be arrived at that the circumstances

C2T23 /1 /ND	40	6/4/89
Chan(2)

had ceased to exist or that by reason of the
circumstances as they now are in China he does

not qualify as a refugee and it is clear that

that material simply was not before the decision

maker and that is one of the specific matters

relied on as demonstrating that the decision

was unreasonable. To proceed to determine ~he

matter without having any such material is, we

submit, unreasonable in itself.

TOOHEY J: If that is the basis of "unreasonableness" and

if you made good your other arguments, would

the matter have to go back to the decision maker ?

MR DWYER:  We submit that the case is one such that it

is appropriate for a declaration simply to be

made that Mr Chan is entitled to refugee status

without it going back to the decision maker.

Mr Chan's status has been under consideration

by the Department since 1982 and the determination

which is under consideration in these proceedings

was only the last of several attempts by the

Department to grapple with this matter and it

is submitted that Mr Chan should not, in those

circumstances, be subjected to the matter going

back for the Department to have yet another attempt

at considering the matter.

The Department has had every opportunity

if it wanted to rely on some change in circumstances

in China to gather that material and to have
it before the decision maker on one of, if not

all of the many attempts that have taken place to determine this matter. And the other factor which the Court can properly take into account

is the likelihood of such material being

available having regard to notorious facts about

China. It is a communist country. It is a country

in which, although certain steps have, in recent

years, been taken to try and introduce some more

law into that country's management of its internal

affairs, has basically, since the communist

revolution, been a country in which freedoms

are not recongized and which persons are subject

to arbitrary arrest and detention and are subject
to being sent into internal exile in precisely

the sort of circumstances that Mr Chan alleges.

( Continued on page 42)

C2T23/2/ND	41	6/4/89
Chan(2)

MR DWYER (continuing):  We have, to assist the Court, referred

to some material from Anmesty International with

regard to China and that material, of course, one

would expect, to be well known to the Department

and to decision makers in the Department.

TOOHEY J:	But it is asking a great deal of this Court to place itself in the position of the decision maker
and make the decision as opposed to reaching a
conclusion that the decision maker did not go about it the right way and therefore the matter should go back to him to go about it the right way.

MR DWYER:  We acknowledge that, Your Honour. Although we

acknowledge that it is asking a great deal we submit

that in all the circumstances of this case it is
the appropriate course to adopt .. Of course, section 16

of the AD(JR) ACT permits it, although it says it

can only be done in an exceptional case. We say that

the whole history of this case constitutes such an

exceptional case. The letter at page 106 of the

appeal book can be, perhaps, indicated as ~ recognition

by the Department that it is appropriate to have

before the decision~maker both general detailed

advice and information concerning the general situation

prevailing in China and, secondly, particular material

relating to the circumstances of the applicant

for refugee status.

Now, it is perhaps appropriate if I pass to the

no~ion of unreasonableness and in paragraph 17 of

the outline there are summarized four grounds, all

of which are relied on as indicating that the decision

was unreasonable. In paragraph 17 there is a

summary of the four grounds which are relied on

as demonstrating that the decision by the delegate

was unreasonable. The first of them is. it is submitted,

that the delegate's acceptance of the DORS Committee

assessment andreconrrnendation involved an improper

delegation. The second is that - - -

TOOHEY J:  Just before you leave that, Mr Dwyer, does the

DORS Conrrnittee have standing within the MIGRATION ACT

itself?

MR DWYER:  No, it does not, it is not referred to in the Act.

It is an interdepartmental conrrnittee. Something

was said about its operation in MAYER's case. Its
operation has been explained in a number of the

decisions in the area.

TOOHEY J:  Do not worry about that, I can look at that for

myself.

MASON CJ:  We can look at that for ourselves.

C2T24/l/MB	42	MR·DWYER, QC	6/4/89
Chan(2)

MR DWYER:  The second ground is that the DORS Cormnittee had,

in 1983, accepted that Chan had been persecuted in

China and there was no material on which a different

finding was opened in 1986. No detailed information

as to the actual situation was considered and then

there are particular areas revealed in the delegate's formulation of his conclusion. As to the first, this

is a matter where the Minister's delegate was a
delegate under section 66D(l) of the Act and section 66D(l)

makes it plain that the delegate does not have a power

of delegation; it says so in terms:

The Minister may, either generally or as

otherwise provided by the instrument of

delegation, by writing signed by him, delegate

to an officer any of his powers under this

Act other than this power of delegation.

The submission is that as the determination under

section 6A(l)(c) had to be a determination by the

Minister or his delegate, t'he delegate and not

the DORS Cormnittee had to determine the matter and
the delegate, lacking any power of delegation, could
not simply adopt the DORS Cormnittee report and
recormnendations of 21 August without examining or
assessing for himself the material that was before

the cormnittee.

(Continued on page 44)

C2T24/2/MB	43	6/4/89
Chan(2)

MR DWYER (continuing):  Then the handbook provides some

guidance .as to the sort of assument that is

required. Paragraph 41 of the handbook

sets out the matters that I have set out in

the outline of argument to be assessed: the

personality of Mr Chan, the nature and strength

of his beliefs and opinions·, his credibility,

his personal and family background, including
his father's political association and activities,
his own activities and experiences and his own

interpretation of his situation. Those factors

are based on what is set out in paragraph 41 of
the handbook and it is plain that in this case
much of the task that had been delegated to the
delegate was carried out by the DORS Committee.

The courts have given some consideration

to the circumstances in which delegations of
this kind or use of a committee can properly be

made.	I would take the Court to the cases which
are set out in that regard.	The matter was dealt

with by this Court in TAYLOR V PUBLIC SERVICE

BOARD.

MASON CJ:  What are these cases going to establish? Can

you tell us, in your own words, what the proposition

is before we look at the cases?

MR DWYER:  Yes, Your Honour. The proposition is that the

courts have said that where a minister has

something to decide, he does not have to, as it were,

try the case himself. He is able to get a

committee to consider the matter in detail

and to report to him and he is able to decide

the matter on the basis of that committee's

report. The justification for doing that is

the minister's power for delegation. That is

what the Court said in TAYLOR V PUBLIC SERVICE

BOARD and that is what has been said in the

Federal Court of Australia, for example by

V MACKELLAR since, that the decision maker may His Honour Mr Justice Deane in SEAN INVESTMENTS delegate both the taking of evidence, the making
of findings on the evidence and so on.

The problem - and for example in SINGH V MHHSTER

FOR IMMIGRATION,	that is a case where the minister
made the decision himself.	We would say the

minister is entitled to delegate part of his task

to the DORS Committee, but the delegate is not

in the same position because - - -

MASON CJ:	Do the cases deal with that position, or not?
MR DWYER:	No, the cases do not.
MASON CJ:	We need not worry about them, need we?

C2T25/l/JM	44	6/4/89
Chan(2)

MR DWYER:  If the Court please. The cases on which I

rely are set out in the outline of argument.

McHUGH J:  Mr Dwyer, there is no question of delegation

here, is there? All that is being done is

that the delegate has accepted the opinions and

evidence of the DORS Committee. That is not

delegation, is it?·

MR DWYER:  It is submitted that it is. The delegate does

not make any inquiry into the matter himself

at all, that is the delegate does not himself

do anything in terms of assessing Mr Chan, or

Mr Chan's story beyond this: he is interviewed

by officers of the Department; he puts on paper

a statement. All that material is considered

by the DORS Committee.

McHUGH J: It is also considered by the delegate, is it

not?

MR DWYER:  The delegate does little beyond except what

the DORS Committee said. What he says

he had regard to appears at pages 112 and 113.

He says he has regard to files of the Department:

and in particular to the following -

matter -

on that file:

(a) Application for Refugee Status .....
(b) Transcript of interview held on

28 June 1986 ..... (c) Minutes of the

DORS Committee meting ..... and (d) Submission

from M. Koivisto of DORS Secretariat.

That is all that the delegate had before him.	It
is plain, simply from that particularization,

that much of Mr Chan's material was not considered

by him, although no doubt it was before the

DORS Committee. There had been an interview

held with Mr Chan in 1982; that is not before the

delegate. Mr Chan had made a statement in which

he set out in narrative form his history and

his circumstances. That is not - - -

MASON CJ:	Was that not in the two files enumerated?
MR DWYER:	It presumably is in the files, but there is

nothing to suggest that the delegate went beyond

the matters that he particularizes.

V.LASON CJ: There is this difficulty, is there not: he

said he had regard to the files and "in particular"

to certain materials.

MR DWYER:  Yes, that is so, Your Honour.

C2T25/2/JM	45	6/4/89
Chan(2)

McHUGH J:	But in addition he himself made specific findings. For instance, he considered that the applicant
had no real political profile.  He accepted he may
have been discriminated against.

MR DWYER: Well, Your Honour, he calls that a finding but, if

one goes to the minutes of the DORS Committee, one

sees that that is where this concept of political

profile comes from. I beg the Court's pardon, I

was referring to the minutes of the DORS Committee

meeting at pages 102 and 103 where one sees various

phrases which have been picked up by the delegate,
but the political profile one which I had thought

was there is not there and I apologize to the

Court for delaying the Court on that point.	I can
do no more than to say that if one reads those

minutes and then reads what the decision maker sets

out as to his findings, one can see that the minutes

represent, in various ways, the source of those

findings.

It is not necessary for me to say anything more

concerning the absence of material that was before

decision maker, in 17.3, but I would desire .to elaborate

on particular matters under 17.4, picking up certain

of the paragraphs of what the delegate said.	The
first of them is what he said is set out in his
numbered paragraph 8, and it is submitted that
that demonstrates that he misdirected himself as

to the requirements of the convention and the protocol.

''The convention and the protocol do not require'a

real political profil~\ nor do they require an

ability' to convey in detail political differences with

refugee may not be able to detail anything very much

the current regime in the Peoples' Republic of China."

apart from how he has been tr~ated and, indeed,

a refugee not even hold political views different

to those of the administration in a· relevant

country.	The question is:	how does.the administration
treat him?

If they treat him as an anti-revolutionary,

it does not matter whether he is in truth an

anti-revolutionary or not. It does not matter whether

he has got or has not anti-revolutionary opinions.

What counts is the way they treat him. The case

that is referred to, YAA AKYAA is an unreported

decision of Mr Justice Gummow. YA AKYAA concerned

a lady from Ghana who claimed to be a refugee

and her story was that she did not have any political

views adverse to the administration in Ghana but

her husband, with whom she had had a falling out,

had told the authorities that she did and that she

was therefore at risk of being persecuted in Ghana

C2T26/1/VH	46	6/4/89
Chan(2)

for opinions which she did not hold. One sees at

page 32, the paragraph in which His Honour

surmnarizes that matter and that is the passage that

is relied on in support of the proposition that

a refugee need not hold political views different

to those of the administration in the relevant

country. Mr Chan did not show that his internal

ex~l~ and periods of detention were related either

to political activites or to him or his family

being branded as anti-revolutionary. It is submitted

that that was persecution for reasons of political

opinion and that that finding is, on the facts,

unreasonable.

The next finding is that:·

he may have been. discriminated against to

a limited degree due to the apparent

percep"tion the local authorities had of his

family, but I considered that this did not
amount to persecution within the terms of

the Convention.

(Continued on page 48)

C2T26/2/VH	47	6/4/89
Chan(2)

MR IMYER. ~ontinuing):  The submission is that, on the facts,

that paragraph indicates a misunderstanding of what

persecution within the terms of the convention was.

Mr Chan's history clearly established that he had

been persecuted and not merely discriminated against
to a limited degree for the reason given. That,

again, is submitted to be unreasonable. In

paragraph 10:

I accepted the Committee members' views that

while he may be the subject of some attention

having escaped from the area where he was

assigned in the People's Republic of China,

any such attention would not consistute a

basis for a well-founded fear of persecution.

Well, he had been warned that he would get two years' detention if he escaped from internal exile and that would constitute a basis for a well-founded fear of

persecution under the convention and that he should

be the subject of any attention for having escaped

from his internal exile would amount to persecution

within the convention, it is submitted and, again,
the delegate was unreasonable.

There is a further matter in 11, to which the delegate referred and that is:

His original preference if made to leave

Australia was to return to the People's

Republic of China, a statement not likely

to be made by someone with a well-founded

fear of persecution in that country. Although

I note his latest preference of return to

Macau (with guarantees), I consider it

inconsistent with a well-founded fear that

he would not have at all times considered

the suggested alternatives of Hong Kong or

Macau as preferable to his country of

citizenship.

He had explained and explained more than once in the

interviews that he believed that if he was returned

to Hong Kang, the authorities there ~uld prosecute him, punish him for having a false Hong Kong identity card and then return him to China where the authorities

would punish him for the reasons which he had specified
and the same thing would happen if he were returned to

Macau and the delegate should, in those circumstances, not have drawn that adverse inference, it is submitted, because it is quite reasonable and credible for him to

prefer, if he has got to face the music in the end

anyway, to get on with it. If he is facing two

years' detention when he returns to China, he does

not gain anything by being detained in Hong Kong or

Macau before he begins his two years' detention.

C2T27/l/SH	48	6/4/89
Chan(2)

Interestingly, a similar problem was before

an American court in McMULLEN V IMMIGRATION &

NATURALISATION SERVICE, (1981) 658 F(2d) 1312.

McMullen was an ex-member of the provisional IRA

and he was claiming to be a refugee in terms of

having a well-founded fear that if he were deported

to the Republic of China, the authorities would not
be able to prevent the provisional IRA with either
killing him or knee-capping him or doing another of

the sorts of things that the provisional IRA does to

persons who had been with them and who later lef~ them

and, in McMULLEN's case, it was put against him, the

same thing - I will have that in a moment, if the

Court would bear with me.	I beg the Court's pardon,
there is a slight delay in turning the report up.	It
looks like my junior cannot find it but perhaps I
need do no more than say that the same point was regarded by the court when taken against McMullen
as not being an appropriate point to base a finding

that he did not have a well-founded fear of persecution

on.

MASON CJ: Well, we have the ·report and we can read it,

Mr Dwyer.

MR DWYER:  The passage appears at page 1318, in about the middle

of the page. There is a paragraph dealing with the
point.

Perhaps I could ask to - the way in which the Full Court dealt with the matter - the Full Court,

as appears at page 254 and the following pages,

proceeded by setting out a number of factors which

were relied on as showing that Mr Chan was within

the convention definition.

(Continued on page 50)

C2T27/2/SH	49	6/4/89
Chan(2)

MR DWYER (continuing):  Those factors are referred to on

page 254 and then, having set those matters out,

on page 255 the Full Court said:

To be weighed against those matters,

assuming that the decision-maker accepted them

all, are other matters which the decision-maker

was clearly entitled to take into account.

One matter of considerable significance is

that at neither of the interviews with officers

od the Department of Immigration and Ethnic

Affairs did Mr Chan advance any basis for a

belief that, if he now returned to China, he

would be punished for having failed to comply
with the requirement imposed upon him prior to 1974 that he remain in a designated area of that country or for having departed from

China without permission.

The court said:

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.

Now, it is submitted, that there is simply nothing

in the material which justified that statement.

The Court can at best be relying on some concept

of facts of which judicial notice can be taken

and that is not the appropriate way to deal with it.

If I could remind the Court in the passage from

Grahl-Madsen to which I referred he talked about

countries in which there was a statute of limitations

by which it might be thought that ptosecution would

not now be likely. But there is nothing in the

material to suggest for one moment that there is

any such statute of limitations so far as the

authorities in China are concerned and there is

nothing in the material to found a view of the court

that the decision maker was entitled to take that

view. The court goes on:

Another significant matter is that Mr Chan gave no indicate that his political beliefs

are contrary to those of the present regime in

The People's Republic of China.

It is submitted that the decision whether fie ought

to be granted refugee status should not depend on

your ability to articulate political issues or to

spell out the ways in which Mr Chan's political

beliefs compare with those of the present regime

in The People's Republic of China. What an approach

C2T28/l/MB	50	6/4/89
Chan(2)

of the kind that is referred to by the court there

takes no account of at all is the persecution

suffered by Mr Chan in the past which raised a

prima facie basis for a well-founded fear and that

prima facie basis really throws the onus not on to
Mr Chan but on to the Department to indicate how

Mr Chan was not entitled to have a well-founded fear of persecution.

TOOHEY J:  Mr Dwyer, that approach by the Full Court suggest$

that it was not faced with an argument that once

a refugee always a refugee?

MR DWYER: That is quite so, Your Honour, yes, and that was

acknowledged at the time of the special leave

application, that that way of putting the matter had

not been canvassed before either of the courts

below. But it is a question, it is submitted, that does

not require any consideration of fact or any

additional findings of fact because it is open

as a matter of international law on the material that

was before the primary court and the Full Court.

The court goes on:

Indeed, he did not articulate any political

issue upon which he differed from the

authorities now in power there.

It is submitted, that if one reads carefully the
records of interview, that cannot in truth be said.

He did, in his no doubt limited way, attempt to

articulate political issues upon which he differed

from the authorities and, in particular, it is plain
that he thought that the way that the authorities

treat anti-revolutionary families meant that he was

really without any hope of having anything like a

fair go from the authorities in China. The court

then says:

he disavowed any involvement, while in Australia,

as antagonistic to it or to its interests. in any activities which that regime might regard

Well, it is true, as appears from the record of

interview, that he had not been involved in any

activities antagonistic to the present authorities in

China. Mr Chan was lying low. The last thing that

he was likely to do was to be drawing attention to

himself by activities of that kind but that fact

cannot advance matters significantly at all. It cannot

be any sort of a requirement for refugee status that

in the country of refuge you engage in activities

adverse to the interests of the country from which you

seek refuge.

C2T28/2/MB	51	6/4/89
Chan(2)

MR DWYER (continuing):  Then the court says:

Yet another relevant and significant matter

is that he expressly acknowledged that there

had been no harrassment of those members

of his family who remain in China.

That is submitted to be very much an

over-simplification of the matter. It is true,

as appears at page 148 of the appeal book,

Mr Chan did say, in his 1982 interview, the one

which may have been on the file but which the

delegate did not refer to, question 90 at the

foot of page 148:

Has any member of your family or any relatives been subject to any harrassment

since you left China?

A. Not since I left China mainland.

Although he had, earlier in the interview,

described how they had been subjected to

harassment before he left. In his second record

of interview he does refer to matters which would

constitute harassment of members of his family

and at page 159 he refers to discrimination against

his family. He sets out what happened to his

mother at her work, at page 159, and at the top

of page 160 refers to belonging "to the anti

revolutionary family" and endeavours to explain

that and then, at question 86:

Can you tell me apart from being asked to

reform how your mother has been

discriminated against?

And he then refers to filling in forms:

so whenever we fill forms it would have

shown that we are anti revolutionary bodies.

What do you mean it would have shown, what

would have shown?
A. For example, you fill in a form that would show your background, whether you come from a farmer background, or you were

a farmer, or you were from a working class,

that type of thing. So if you put yourself

down as anti revolutionary before, if they

know that you are from that sort of party

that means that you are from a very bad

sort of background, then you will be

discriminated.

Then there is the question of his mother being

forced to retire in the next two questions

C2T29 /1 /ND	52	6/4/89
Chan(2)

and he does not know whether she receives a

pension. Then the question of discrimination

against his sisters is taken up and, again, he

refers to some problem with knowing how you

define ~discrimination'' but, again, explains

that:

if you work in a factory that if they know

that your background is from anti-

revolutionary family then you would be under

certain type of a reformation, would this

be recognized as discrimination?

And then, on page 173 and 174 he refers to recent

events, the opening of the letter by the Chinese

authority that he had sent to his family, the

questioning of his sister by the Chinese authorities

with regard to him. Those events, it is clear,

had taken place after his first record of

interview and after the statement on page 148

that might constitute the foundation for what

the Full Court said and it is plain that on the

material there was - the letters from his family

constitute some further confirmation of that,
at page 95, at lines 5 and 6:

My status remains a literate youth for farmland resettlement and my household belongs to the farmland. If they send me

back, I would be in prison innocently

because I escaped illegally before.

That is a 1984 letter. The letters that are

set out in the appeal book are all subsequent

to that initial interview in 1982.

So it is submitted that the factor as expressed by the Full Court appearing at

page 256 of the appeal book is not in truth a

matter which in those terms the decision maker

was entitled to take into account.

(Continued on page 54)

C2T29/2/ND	53	6/4/89
Chan(2)

MR DWYER (continuing):  The submission in general _is, I hope,

clear that on a proper construction of the convention

and on the material Mr Chan established that he

was persecuted and that he had a well-founded

fear of being persecuted should he be returned

to China and that he was unwilling to return

to it. Mr Justice Keely found that the decision

contrary to that was unreasonable and it is

submitted that Mr Justice Keely was right.	Indeed,
it is submitted that this is a case where,	in all
the circumstances, it would be appropriate	for the
Court to take the further step of making a

declaration that he is entitled to refugee status

under the convention.

TOC:EY J:	Mr Dwyer - perhaps you are going to deal with
this - what then is the position of the other
appellants?
DWYER J:	I am grateful to Your Honour.  His wife,
Soo Cheng Lee, and his child, Kelly Kar Chun Chan,
are vitally interested in the outcome of his
refugee status application because if he were in the situation where he is recognized as being
a refugee or there is a determination that he
is a refugee, then the Minister would, it is
submitted, be required to take that determination
into account in deciding whether a temporary
entry permit should be granted to him and
whether an entry permit should in turn be
granted to him and in determining what should
happen to his family. If Soo Cheng Lee would
then be the wife - the de facto wife of a
person recognized as having refugee status
and Kelly Kar Chun Chan would be a child who is
an Australian citizen of a person recognized as
having refugee status.
TOOHEY J:	I take it then that no substantive relief is

sought in these proceedings in respect of either

his wife or child?

MR DWYER:  No, Your Honour.

TOOHEY J: Their position is as persons having an interest

in the outcome of his application?

MR DWYER:  Yes. It goes a little bit beyond a mere interest,

however. I ought say that I was - - -

TOOHEY J:  I was using that, I think, in some sort of

technical sense.

MR DWYER:  There were other proceedings before Mr Justice Keely

which related to deportation of members of the family

and one fact which Soo Cheng Lee faces is that she is

C2T30/l/JM	54	6/4/89
Chan(2)

a Malaysian citizen and if she is deported

she will be deported to Malaysia. So she would

be deported to somewhere different	from·her
husband, if he is deported.

His Honour Mr Justice Keely set aside the decision to deport Soo Cheng Lee and

regarded that the other deportation orders

should be reconsidered along with it. There was

an appeal against that decision, also to the

Federal Court. The Federal Court set aside

Mr Justice Keely's decision on that point and

no appeal has been brought to this Court against

that decision of the Federal Court.	No leave
was sought and no leave was obtained.	The matter

is presently, we submit, on the basis that

should the matter either be determined that

Mr Chan is a refugee, or should the matter be

sent back to the Minister for reconsideration as

to whether he is a refugee, it would be anticipated

that the orders relating to the deportation of

Chan and his wife would in turn be reconsidered

as part of that reconsideration process. Then

ultimately, so far as Kelly is concerned, the

decision would have to be taken,if they are still

to be deported after that consideration,
whether Kelly should accompany his parents, or
whether as an Australian citizen he should remain

in Australia. But all of those decisions would be in the future, but they are all likely to be

effected by the outcome of these proceedings.

TOOHEY J:  Mr Dwyer, could I just ask you something about

section 6A of the MIGRATION ACT? It is cast in

the negative, in terms of"an entry permit shall
not be granted:' Is it a corollary that an
entry permit shall be granted if one or other
of those conditions exist, or does that merely

pave the way for an application for an entry

permit?

(Continued on page 56)

C2T30/1/JM	55	6/4/89
Chan(2)

MR DWYER:	I think that the position is, Your Honour, that the
Minister retains a discretion whether to grant an entry permit even if all of the conditions in section A(l) are satisfied.
TOOHEY J:	Your client, presently, is a prohibited non-citizen, is he not?
MR DWYER:	That is so.
TOOHEY J:	So even a declaration as to refugee status would
not conclude the matter.  He would still need to be
theholder of a temporary entry permit in order to
seek a permanent entry permit.
MR DWYER:	Yes, he would indeed. But as the cases recognize
and, as the conduct of the Department revealed in the case shows, the decision makers in these cases always acknowledge that they have it in their power to grant a temporary entry permit at any stage.
And the Minister, in deciding that question, that is,
he has first got to decide whether to grant a
temporary entry permit and  if he decides , yes ' he has
then got to decide whether to grant an entry permit;
in deciding those questions, once it were decided
that Chan was a refugee, the Minister would, we would
submit, be expected to take into account Australia's obligations under the convention and, in particular,
the obligation in clause 33 of the convention not to return a refugee to the country from which he
seeks refuge.
So the making of the determination that he is entitled to refugee status is plainly a matter that
the decision maker would have to take into account in deciding whether to grant a temporary entry permit and in deciding whether to grant an entry permit.
TOOHEY J:	Why is (c) qualified by reference to a temporary
entry permit?  Assuming that a person had been
determined to be the status of a refugee, from what
you say that might then be sufficient to lead to
the granting of an entry permit.
temporary entry permit is there simply to protect I suppose the
him against the position of a prohibited non-citizen
while his application for refugee status is being
considered.

MR DWYER: Well, I am not sure whether that is the reason why

it is done, Your Honour. The notion is that many

people will have temporary entry permits, that is,

temporary entry permits are given to visitors, for

example, and the requirement to hold a temporary

entry permit appears in not only subsection (c) but

also in (d) and in (e) and, there have, of course,

been many cases under (e) in particular. There

have been cases where persons who do not have

temporary entry permits make a claim for consideration

C2T31/l/VH	56	6/4/89
Chan ( 2)

on the basis that:

there are strong compassionate or humanitarian
grounds for the grant of a entry permit.

And that claim is considered by the Minister even though the person does not have a temporary entry

permit. The expectation being that if the Minister

decided that there was a basis for compassionate or humanitarian grounds, he would then take that

decision into account in deciding whether to grant

a temporary entry permit and, in turn, in deciding

whether to grant an entry permit as such.

TOOHEY J:	But unless there were a temporary entry permit
while those matters were being considered the person would be liable to deportation.
MR DWYER:	Yes.  In some of the cases there have been temporary
entry permits; in some of the cases there have not.
One sees from the reported cases under (e) that
sometimes the circumstance has existed, sometimes
it has not. Similarly, here, sometimes - MAYER's
case, for example, was the case of a person who held a temporary entry permit and, as the holder of
a temporary entry, sought refugee status. Other
cases involve persons who were not the holders of
temporary entry permits and who sought refugee status
and the cases indicate that the Minister recognizes
that he may, at his discretion, grant a temporary
entry permit at any stage. It is simply one of the control mechanisms that he has under the section.
He:cettainJ.:y could, if he desired to regularize
matters while a decision was being made under (c)
about refugee status or, under (e) about:

strong compassionate or humanitarian grounds -

he could issue a temporary entry permit to cover the

situation while he was doing that. But the practice

appears not to be to do it that way.

TOOHEY J: Yes, thank you.

MR DWYER: That is all that I desire to submit to the Court.

MASON CJ: Well now, Mr Dwyer, before you sit down, can I come

back to your cessation argument and refer you to
paragraph 112 of the UN handbook. If you look at the

first sentence of paragraph 112, it says:

Once a person's status as a refugee has been

determined, it is maintained unless he comes

within the terms of one of one of the

cessation clauses.

MR DWYER:  Yes.

C2T31/2/VH	57	6/4/89
Chan ( 2)

MASON CJ:  And then the footnote says:

In some cases refugee status may continue,

even though the reasons for such status

have evidently ceased to exist.

Does that not indicate that the continuation argument,

depending on cessation, really only applies once there

has been an initial determination of refugee status?

MR DWYER:  It does provide a basis for dealing with the matter

in that way, Your Honour, but one, as against that,

simply finds in works of authority, the matter dealt

with differently. One finds the general statement

being made that - - -

MASON CJ:  Is there any reference in the works of authority to

paragraph 112?

MR DWYER:  Not to paragraph 112, that I am aware of, Your Honour,

but that paragraph does confine the question to cases

where a person's status as a refugee has been

recognized. But Grahl-Madsen does not confine his

discussion in that way; Goodwin-Gill does not appear

to have confined his discussion in that way; Professor

Hyndman does not confine her discussion in that way.

MASON CJ:  But that certainly is consistently the view expressed

in the handbook, is it not? If you look, for example, then

at paragraph 135, the last sentence in that paragraph:

A refugee's status should not in principle

be subject to frequent review to the detriment

of his sense of security -

MR DWYER:  Yes. That appears to be a recognised principle which

is applied in all of the works on the topic and it is

perhaps noteworthy that, having set out article 1C(5)

of the convention, paragraph 135 itself is in general

terms. Paragraph 135 :in.the handbook is not confining
the question of change of a refugee status to persons

who have been recognized as refugees.

The only other argument that I think I can advance on that is to take the Court back to that footnote to

paragraph 112 which might be seen as providing some

basis for the suggestion which, I think, Your Honour
the Chief Justice made that, perhaps, the explanation
for that phrase "circumstances in which he has been

recognized as a refugee" is to be linked with the

specific cases dealt with in the proviso because

paragraph - - -

C2T32/l/SH	58	6/4/89
Chan(2)

MASON CJ:  But does not paragraph 136 indicate fairly strongly

that that is not the position, that the proviso

is directed to protecting statutory refugees?

MR DWYER:  Yes, that is so, Your Honour, but the statutory

refugees are those who are spelt out or described in article lA(l), and I referred the Court to the

conventions and so on.

MASON CJ:	Yes.
MR DWYER:	Now, it may be that it is those specific conventions

or statutes which are regarded as - - -

MASON CJ:  That is giving "recognized" a more limited meaning

than would be consistent with a view I am putting

to you based on paragraphs 112 and 135?

MR DWYER:  Yes, it is, Your Honour, but it is worthy of note

that by the footnote to that first sentence in

paragraph 112 that aspect of the matter is expressly

referred to, that is, it is there referring to the

case of persons who recognized under article lA(l)

by the proviso outside the operation of article 1C(5)

in certain circumstances. If the Court pleases.

MASON CJ:  Yes, thank you, Mr Dwyer. Yes, Mr Callaway.

MR CALLAWAY: Ma.y I -hand to Your Honours the contentions for

the respondents and copies to my learned friends.

MASON CJ:	Thank you.
MR CALLAWAY:	Your Honours will see that we first address two

preliminary matters in the first three paragraphs.
These are simply two matters that we think it our
duty to mention to the Court, they are not matters

that are going to be the subject of lengthy submission.

It is perfectly true that the respondents conceded

that the decision in this case was a decision under

an enactment and that the Federal Court had

juri~diction. (Continued on page 50)

C2T33/l/MB	59	6/4/89
Chan(2)

MR CALLAWAY (continuing):  On the authorities, if one

were a private litigant, one could probably

resile from that concession but we do not wish

to do so; we made the concession and we do not

think we should. But, of course, it is a

jurisdiction point and we cannot escape from

the duty of mentioning to Your Honours that it

may very well be that in the case of a person

like Mr Chan who is not the holder of a temporary

entry permit the decision in question is not

made under section 6A(l)(c) of the MIGRATION

ACT or any other provision of that Act or any

enactment and, solely in discharge of that duty,

we have set out the authorities and materials

which raise that doubt in our mind.

All I would desire to add to it, unless

the Court indicated that further submission was

helpful, was to hand up the promised material

from Hansard because in our notice we said that

we would provide it and we now fulfil that

promise and to say to the Court that we do not,
for one moment, accept my learned friend

Mr Dwyer's submission that MAYER's case is

authority for the proposition that a decision

in relation to a person who does not hold a

temporary entry permit is a decision under an enactment.

If invited to develop the submission we

would say that MAYER's case is a decision by

implication to the contrary. Having discharged

that duty I move to the second preliminary matter.

Your Honour Justice Toohey asked my learned friend

certain questions concerned with the requirement

for the grant of a permit and not just a

determination of refugee status. In this case,

Your Honour, Mr Chan did apply for a temporary

entry permit and that application was refused

by the respondent Minister, not by a delegate,

and a challenge to that refusal succeeded before

the learned primary judge but the Full Court

reversed that decision and there has been no

appeal from the judgment. (Continued on page 61)

C2T34/	1 /ND	60	6/4/89
Chan(2)

MR CALLAWAY (continuing): It may be thought significant

in the light of that, that if the present

appeal did succeed it might avail the appellant
very little because he would still require a
temporary entry permit, and even assuming that he
could make a fresh application, despite the

previous application that failed, the ultimate

decision whether to grant the necessary

temporary entry permit is almost entirely

discretionary.

DAWSON J:  Is the only way you can have a determination of

refugee status under 6A(l)(c)?

MR CALLAWAY:  Your Honour, in the case of a person who is

in this country, yes. Section 6A was put in
the Act for the purpose of greatly restricting

the circumstances in which persons who were already

in Australia could secure permanent resident

status. It was largely designed to discourage

queue jumping.

DAWSON J:	Not permanent resident; refugee status.
MR CALLAWAY:	Permanent resident status generally, Your Honour.

It was designed to discourage,people coming to

Australia as visitors, overstaying their period

of permitted visit and then turning around and

saying, "I want to stay in Australia on one or

other grant". In the case of a person who

applies overseas and claims refugee status, a
decision could be made not under the MIGRATION ACT,

but simply as a matter of executive discretion.

But where a person is in Australia and claims

refugee status, then the only source is 6A(l)(c).

That, of course, is Mr Chan's case.

DAWSON J: Yes. That may not be strange, it just seems

that the convention assumes that you have the

status, or may have the status, apart from the determination which is the thing that you have

as status dependent upon certain circumstances,

but the effect of this is you do not have a status

or your status avails	you	nothing unless you
have a determination.

MR CALLAWAY: That is so, Your Honour. It avails you

nothing in terms of securing an entry permit

to remain in this country.

TOOHEY J: Mr Callaway, was the argument about the temporary

entry permit dealt with by Mr Justice Keely and

by the Full Court as incidental to the refugee

status argument?

MR CALLAWAY:	No, Your Honour.
TOOHEY J:	Or were they dealt with independently?

C2T35/l/JM	61	6/4/89
Chan(2)

MR CALLAWAY:  They were quite independent, Your Honour.

They were the other proceedings to which

my learned friend, Mr Dwyer, referred. They

were in substance the deportation proceedings.

But if one reads the references, especially

pages 238 to 244, the Full Court quite clearly says that Mr Chan applied for a temporary entry

permit, that the Minister refused it, that

Mr Justice Keely set aside that decision and

the Full Court restores it.

(Continued on page 63)

C2T35/2/JM	62
Chan(2)

MR CALLAWAY (continuing): But, our concern was more this,

if the Court pleases: that the two cases referred

to under paragraph 3 of our contentions at the pages

referred to, namely, GUNALEELA and MAITAN, show that

the discretion to give or refuse a temporary entry

permit is a very wide discretion indeed. It is

not unreviewable but it is almost unreviewable and,

accordingly, if the present appeal succeeded, its

practical effect in terms of benefiting Mr Chan

would be doubtful.

Now that, again, is not a matter that we desire

to enlarge on but, in the light of what the Court

said in MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

V POCHI, we thought that we should apprise the Court

of the limited practical significance of the matter

that is now being agitated before Your Honours.

Turning to the substantive matters of the appeal,

we first address the matter of unreasonableness and

submit that the Full Court posed and applied the

correct test for determining whether the decision to

refuse to recognize the appellant as a refugee was

unreasonable. In the appeal book, at pages 253 to

254, the leading authorities are referred to; the

well known passages are quoted and we would not seek

to read them to the Court. We would only add this,

Your Honours, that in the case of manifest

unreasonableness, what in this country is usually

understood as WEDNESBURY unreasonableness, Lord Greene

in WEDNESBURY had yet another epithet and said that

one would have to show something quite overwhelming.

We respectfully add that to the statements of authority

that are set out in the appeal book at 253 to 254. The

phrase would require something overwhelming, and I simply

give the Court the citation, is in ASSOCIATED PROVINCIAL

PICTURE HOUSES LTD V WEDNESBURY CORPORATION, (1948)

1 KB 223 at page 230 point 7.

Your Honours will recall that in WEDNESBURY,

Lord Greene quite explicitly discussed two different

kinds of reasonableness. His Lordship said, first,

that reasonableness is often used in a comprehensive

sense to include practically all the errors that can

be made, failing to take into account a relevant matter,

misdirecting oneself and so forth.

(Continued on page 64)

C2T36/l/SH	63	6/4/89
Chan(2)

MR CALLAWAY (continuing):  His Lordship then spoke of

reasonableness in the sense of manifest unreasonableness

and posed the test that is now in the JUDICIAL REVIEW

ACT that the decision must be so unreasonable that
no reasonable person could have come to it. There
is much confusion in the authorities because when

references are made to reasonableness,sometimes associated with a reference to WEDNESBURY it is not always clear whether the reference is to what in this

.country is called WEDNESBURY unreasonableness,

manitest unreasonableness, or whether the reference

is to the other part of Lord Greene's judgment

where reasonableness was used as a coverall in

relation to all sorts of errors. But here, for

what it is worth, it is clear that the ground relied

on in the notice of appeal is manifest unreasonableness

in the WEDNESBURY sense because that is the phrase

used "manifestly unreasonable" at page 266 of the

appeal book.

TOOHEY J: Well, why should we not stay with the language of

the statute?

MR CALLAWAY:	We would be entirely content with that, Your Honour, and we would say, with respect, that the language
of the statute correctly states "WEDNESBURY unreasonableness", "manifest unreasonableness" and,
it is our respectful submission that one cannot
say that Mr Richardson's decision was one that no
reasonable person could arrive at. Indeed,
Your Honour the Chief Justice in PEKO-WALLSEND pointed out that that paragraph of the JUDICIAL REVIEW ACT does reflect manifest unreasonableness in the narrow
correct WEDNESBURY sense.
MASON CJ:	Mr Callaway, it might be a convenient time to adjourn now. We will resume at 2.15.
AT 12.54 PM LUNCHEON ADJOURNMENT

C2T37/l/MB	64	6/4/89
Chan(2)

UPON RESUMING AT 2. 15 PM:

MASON CJ:	Yes, Mr Callaway.
MR CALLAWAY:	If the Court pleases. Your Honours, when

the Court rose I was about to turn to

contention No 5 that, in our respectful

submission, the learned primary judge, although
he posed the correct test, substantially for

the reasons given by the Full Court, fell into

error in applying it. I would like to take

Your Honours briefly to part of

Mr Justice Keely's judgment because it is a

way of answering some of my learned friend's

points and developing that important part of

our submission.

Beginning at page 212 of the appeal book,

at the foot of that page His Honour accepted

the submission of the Minister that:

the reasons for decision of the delegate

should not be scrutinized "too finely or

precisely" and that they "should be
studied carefully but sensibly, and not

zealously in the pursuit of error" -

words that we respectfully adopt and suggest

should be borne in mind in evaluating the

submissions of my learned friend, Mr Dwyer,

especially in part 17.4 of his submission.

Then His Honour refers to the well-known

authorities and at the top of page 214 to:

the "limited role of a court reviewing the

exercise of an administrative discretion.

(Continued on page 66)

C2T38/1/ND	65	6/4/89
Chan(2)

MR CALLAWAY (continuing): It is a large part of our respectful

submission that, although His Honour reminded

himself of the duty not to prefer one's own opinion for
the opinion of the decision maker, in large part

that is the error which we submit His Honour fell into. We submit that that is shown by His Honour's

references to the earlier decision by the other

delegate. That simply shows that different minds

can come to different conclusions. It suggests

that His Honour may have been attracted by the

conclusions of the earlier delegate but, in our

submission, it does not show that the present

delegate's decisions is one that no reasonable

person could make. After setting out th~e~ paragraphs

from the reasons, at the bottom of page 214,

His Honour said:

It may be that the delegate was led to make

the decision by reason of his apparent willingness to accept uncritically the

views of the members of the Determination

of Refugee Status Committee.

It will be our submission in the appropriate part of

the argument that the material simply does not suggest
that and that, with respect, it is not apparent that

there was any willingness to accept uncritically the

recommendation of the DORS Committee.

The learned primary judge then refers to differences

in language which are taken up by the Full Court in
words that I shall not read but at pages251 to 252 of
the appeal book and then quotes, in the middle of page 215,

a passage from the reasons, but that passage comes from

Mr Chan's claims as set out in paragraph 4. It would

appear that occasionally His Honour fell into the

error of treating the recitation of Mr Chan's claims

as facts that had been accepted. At the foot of that

page, His Honour compared expressions used in the

delegate'·s reasons with what had been said by the

earlier delegate but, with respect, that goes no distance to showing that the present decision is

manifestly unreasonable.	Then again, at page 216
point 6, His Honour says:_

In any event, the present delegate accepted

that "his father's former associations ... resulted in his family being branded as an 'anti-revolutionary'family".

But again, that is one of Mr Chan's claims. That is at

page 110 of the appeal book, line 10.

C2T39/l/VH	66	6/4/89
Chan(2)

MR CALLAWAY (continuing): There again His Honour goes back

to the exercise of contrasting theviews of the present

delegate with the views of Mr Griffith's. We submit,

with respect, that that is an erroneous approach to

the task. At page 217 the learned primary judge

refers to thepro·forma letter to which my learned

friend, Mr Dwyer, referred this morning, and then

the passage that I think my learned friend read,

His Honour said, "that the only significant material"

was therefore the material provided by the applicant.

But, Your.• Honours, while it may be ti.ue that the

delegate did not have available to him nor the

DORS Committee to it, specific or detailed information

about current conditions in The People's Republic
of China that is not to say that elementary general

knowledge of a notorious character would not be

present to the minds of all the persons concerned.

Mere information such as that the cultural revolution

is long passe~ that the authorities in Beijing now

are very different idea from the authorities at

the time that Mr Chan left China; information like

that is general knowledge which the delegate is

allowed to use and would be criticized no doubt if

he had not used. So that His Honour's statement at

217 does not exclude the availability of general

knowledge.

Your Honours, we then submit that a perusal of the reasons given by the delegate and the material

to which he refers shows that the Full Court's

judgment was correct. It is hardly appropriate in

a final appellate court to go through all the material

again that has been looked at in two courts below.

We submit that if one reads the delegate's reasons

in a fair-minded way, if one has regard to the material

that the delegate refers to, if one is not led to

agree with the delegate and, in our submission that

is the most likely result, at any rate one cannot

draw the conclusion that the decision is manifestly

unreasonable. (Continued on page 68)

C2T40/l/MB	67	6/4/89
Chan(2)

:MR CAf.1..JMAY (continuing):  But there is one aspect of it that

is necessary to stress and that is, it is not just

a matter of reading all Mr Chan's claims and the

transcript of the interview and then asking whether the decision is manifestly unreasonable. There was a considerable element of credibility involved in

this decision. The DORS Conunittee, at page 103 of

the appeal book, had twice referred to essentially
issues of credibility. The representative from the

Department of Inunigration and Ethnic Affairs, at the top of page 103, was recorded as saying:

Hence we experienced severe -

presumably with the usual number of e's -

credibility problems with this claim. It

was difficult to tell what he had experienced,

if anything, in the way of persecution.

And, similarly, the representative from the Department

of Foreign Affairs was recorded as having begun his sununary
with the words:

It was difficult to establish the facts in the applicant's claim.

It is not hard to understand that if one looks at the material itself. For example, if Your Honours turn to

page 132, right at the bottom of that page, this being

a statement by Mr Chan of November 1982, there is the

statement:

I succeeded in November 1974 and reached

Hong Kong.

That is signed by Mr Chan on the next page but that

was quite untrue and, in the supplementary statement,

at page 134 in another signed statement, Mr Chan says:

I fled to Macau sometime in 1974-75 from China

and told the authorities I was born there and

was able to obtain a resident status through the

help of someone I bribed.

(Continued on page 69)

C2T41/l/SH	68	6/4/89
Chan(2)
MR CALLAWAY (continuing):

I lived in Macau for 3 months and
then went to Hong Kong until 1978 when
I returned to Macau.

2. When the authorities discovered that I

was not born there they put me in gaol
for about 20 days. After I was released

I went back to Hong Kong. I did not

mention this before as I am worried that

If I am not allowed to remain in Australia

I could be sent back to Macau.

And so forth. Then again, if Your Honours look

at page 155, question 30, in the middle of the

page, the interviewer, Mr Smits, in the second

interview to which the delegate says he had regard, refers to Mr Chan's application for refugee status and questionnaire. Question 32:

In the original application	neither of your
brothers have been included	whatsoever, they

have not been declared.	A.	What year was
the application made?

Q33 This was made in about November 1982.

A. Because at that time I was putting in an

application as a Refugee Status for my

migration application, and I did not want

my application to be effected, because if

I declare that I have brothers in Hong Kong

then you might think that I will have

someone in Hong Kong and I can go back to

Hong Kong.

Q34 At your previous interview with

Mr Fensling, the fact that you had left

off the brother who was residing in Hong Kong

was discussed with you. At that time you

said that you had not declared that brother

because you did not get along with him and

for that reason you decided to omit him.

I interpolate, Your Honours, that that is at page 147, lines 1 to 5.

But even then you did not raise the

matter of your other brother still living

in Macau.	I wonder why you did not declare
him as well? A.	I believe that during one

of the interview that it must be corrected

afterwards because as far as I can remember

that during one_interview that I do not want to

declare this brother in Macau the reason is,

that I do not want to go back to Macau if they
know that I have a brother in Macau probably

I will be sent back to Macau, that is the reason.

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Chan(2)

MR CALLAWAY (continuing):  Your Honours, I do not read

these passages for their embarrassing quality
but simply to show that there was a genuine

credibility problem in this case and that the

delegate was entitled to take that into account.

And, in our submission, the Court should take

that aspect of the matter into account in

addressing the question of whether the delegate's

decision was so unreasonable that no reasonable

person could have reached it.

As to the onus of proof, I begin by

apologizing for the fact that our contention 7

contains a reference to the Australian guidelines.

As my learned friend correctly said, it was only

at quarter to ten this morning that I was

instructed that the guidelines are used when

people apply for refugee status overseas and

it is the United Nationi handbook that is used

in a case such as Mr Chan's. But the point of

substance is the same. Both documents say that

to a very large degree an applicant for refugee

status should be given the benefit of the doubt

and we entirely accept that. But it is certainly

not the case that there is no onus on the

applicant for refugee status.

The position is that it is for the applicant to show that he satisfies the criteria but that

he is to be given every reasonable benefit of

the doubt and we submit that that emerges from

the paragraphs of the United Nations' handbook

that are referred to under contention No	7 and
which have been read this morning.	But the ultimate

onus when every reasonable allowance has been

made for the alleged refugee is an onus on the

refugee and I notice from the passage my learned

friend, Mr Dwyer, read this morning that that

is accepted by Professor Hyndman in her article

in the Human Rights Quarterly and it is also

consistent with what was said in the House of

Lords in SIVAKUMARAN.

The references in our contentions are to

the All England Reports and may I substitute for Your Honours the reference in the Weekly

Law Reports.

(Continued on page 71)

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Chan(2)

:MR CALLAWAY (continuing):  The case is reported in (1988) 2 WI.,R 92

and, as to our three references at the top of page 3

of the contentions, the one described as 198.1 in the

Weekly Law Reports is page 98, letter H, the reference

to what "has to be demonstrated". The

references to 201.2 in the Weekly Law Reports is to

page 102 letter H - the phrase "have to establish"·. is page 103 letter G, a quotation from paragraph 42

of the United Nations handbook,	the phrase "if he
can establish"·

Your Honour Justic~ Toohey asked my learned friend,

Mr Dwyer, a question concerning the Australian guidelines.

Your Honour referred to paragraph A36. I do not wish

to take the Court to the Australian guideliness but, in our submission, it is certainly not their purport that the onus of proof is reversed and even less is it

intended that it should rest on the Minister to prove

beyond reasonable doubt that the person is not a

refugee. The languge of paragraph A36, in our

submission, becomes clear when it is read in the total

context of paragraph - well, it is not a paragraph

number, it is a part of the preamble	at page 51 of
the appeal book, point 3.

At pages 58 and 59 of the appeal book, paragraphs

A36 ,through to A38 and perhaps most clearly, Your Honour,
at page 67 of the appeal book, paragraph B22, the

last line and a half which says:

with the benefit of the doubt in borderline

cases being given to the applicant.

(Continued on page 72)

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Chan(2)

TOOHEY J: Excuse me, Mr Callaway, we were told by Mr Dwyer

that, as the convention originally stood, it was

qualified by reference to events occurring before

1 January 1951 and that subsequently that qualification

was removed. Was the convention amended in any other

respect at the time that the reference to 1951 was

deleted?

MR CALLAWAY:  Yes, Your Honour.

TOOHEY J: In any respect relevant to this appeal?

MR CALLAWAY:	It is, it is a rather complicated chain of reasoning but there was a geographic restriction
in the convention which was optional. Article lB
said that,when you acceded to the original convention,
you could elect that the words "events before 1951" be read as "events occurring in Europe before 1951" and Australia was one of the few countries which
did elect to adopt that narrow interpretation. When
the protocol was adopted, its main purpose , as
apparent from article 1 of the protocol, was to
adopt international obligations free of the date line
and article 1 also said that the protocol would not be
subject to any geographic restriction but that was
followed by a saving clause for countries that had elected, under the convention, to restrict themselves
to. events occurring in Europe. The relevant words of
the protocol are, with respect, extremely difficult
to construe but the true view is, in our submission,
and the departmental practice is that, in respect of
persons not covered by the convention because of the
date line, but covered by the protocol as it is
claimed Mr Chan is, there is no geographic restriction.
So, in the end, for Australia and a few other countr·ies
the protocol does have the effect that there is no
geographic restriction either since 1951.

Your Honours, the reason we refer to the onus

of proof, albeit an attenuated onus of proof, is

really for this purpose: in our contention number 7

we submit that Mr Chan did not discharge the onus and

we submit that that is a proper inference to draw from
the onus, that no reasonable person could have failed to be satisfied that Mr Chan had brought himself within the criteria. So, in terms ofWEDNESBURY

the materials but, of course, that is not the test.

unreasonableness or, as Your Honour Justice Toohey

correctly reminded me this morning, we could more

usefully say section 5(2)G unreasonableness, that is

another mountain for the appellant to climb when one

remembers the incidence of the burden of proof.

Before I turn to contention number 8, may I,

on the hypothesis that this is probably the least

C2T45/l/SH	72	6/4/89
Chan(2)

inconvenient time to do it, briefly say.what our

submissions are in relation to some points that

my learned friend, Mr Dwyer, made this morning in

relation to this part of the case.

First as to the meaning of "persecution", my

learned friend referred to Dr Grahl-Madsen's

condensation of certain decisions referred to in

his book but we would submit that that is really not

very helpful. Decisions on their particular facts

by overseas courts, mainly French and German courts

which, as we understand it are courts lower in their

respective heirarchies than this Court, are really

an unsafe basis on which to work out a shopping list
and say this is or is not persecution.

The United Nations handbook itself, in paragraph 51,

to which my learned friend referred this morning, says

there is no universally accepted definition. In our

respectful submission, what amounts to persecution

when one is concerned with a well-grounded fear of

persecution is inevitably a matter not only of fact,
varying and properly varying from case to case, but a
matter of evaluation and frequently a matter of

impression.

(Continued on page 74)

C2T45/2/SH	73	6/4/89
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MR CALLAWAY (continuing):  Your Honours, at the risk of

anticipating it, well only one sentence of

anticipation, when I turn to the part of the case

concerned with the cessation clauses that is, in

our submission, another reason why my learned friend's

argument should not be accepted, that one looks back

to the time the alleged refugee either first fled
from his home country or being outside it declared

himself a refugee. Taking this present case, looking

back to 1974, if matters of persecution are to a large

extent matters of impression, how much more difficult,

we are rhetorically, is that impression if it is

cast back to 1974 or as it may be, 1930 or 1922, but

I will come to that at the proper time.

Next, as regards the meaning of "well-founded

fear" in the convention, we would respectfully adopt

the approach to those words in the convention endorsed

by the House of Lords in SIVAKUMARAN. The convention

plainly contemplates,and the United Nations handbook

recognizes, that there is a subjective element and

an objective element and the reason for that,

Your Honours,is very good. The purpose of the

convention is not to protect persons either who

have no fear at all or whose fears are not well grounded.

There is not, Your Honours, an unlimited resource

in this case. Every time somebody is wrongly accepted

as a refugee for whatever reason a scarce international

resource is wasted and someone else who is truly a

refugee is unable to find refuge and unable to be
protected in accordance with the convention. That is

the reason, in our submission, why the definition

requires the fear to be well-founded and imports an

objective test. As to what that test means we adopt

what was said in the House of Lords but.if I might just

briefly, without reading them, refer Your Honours to

the particular passages on which we rely in

(1988) 2 WLR.

First, in the speech of Lord Keith of Kinkel

at page 97C, the sentence beginning:

This inference is fortified by the reflection that the general purpose of the Convention

is surely to afford protection and fair

treatment to those for whom neither is

available -

and so forth. It is that sentence that lay behind

what I said a few moments ago. Then later in

His Lordship's speech, page 98 letter H:

In my opinion the requirement that an applicant's

fear of persecution should be well-founded means

that there has to be demonstrated a reasonable

degree of likelihood that he will be persecuted

for a Convention reason if returned to his own

country.

C2T46/l/MB	74	6/4/89
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McHUGH J:  Mr Callaway, what is meant by "a reasonable degree

of likelihood"?

MR CALLAWAY:	Your Honour, His Lordship goes on to give other phrases which are said to illustrate it and we do not in any way disavow those phrases, but for ourselves
we would say this, that it is evident all the
members of the House of Lords agreed with each other
though they were saying it in different words, if
one reads all the speeches.  The test that emerges
from  especially Lord Goff's speech is whether
on the objective facts there is a real and substantial
risk of persecution and if we had to make our submission as to what the best p_hrase is,that is the phrase that we
would opt for.

Your Honours, we also rely on Lord Templeman's

speech, at page 100, on two passages: letter F where

His Lordship says that:

The Convention does not enable the claimant

to decide whether the danger of persecution

exists.

And letter H where His Lordship says:

The Secretary of State has concluded that there is no real and substantial danger -

and, Your Honours, that is one of the several

passages where that test emerges as perhaps the
predominant phrase, at any rate, in the House of
Lords. In Lord Goff's speech that phrase, but with

the substitution of "or" for "and" appears at page 102

letter H. We submit that probably it does not matter

whether one says "and" or "or". Real risk of

persecution, substantial risk of persecution, we submit,

are just different ways of trying to convey the same

impression to the mind, thatit must be objective and

it must be a matter of substance, it must be a

matter of reality.

TOOHEY J:	But it is the fear of being persecuted that grounds
the status of the refugee, does it not?
MR CALLAWAY:	So long as it is well founded, Your Honour.
TOOHEY J:	Yes, and I understand how objective facts could

assist in deciding whether it was well founded or not but, ultimately, the test is not an objective

one, as I see it.

MR CALLAWAY:  Well, Your Honour, in our submission it is

partly subjective and partly objective. The person

claiming to be a refugee must generally fear

persecution for a convention reason.

C2T46/2/MB	75	6/4/89
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TOOHEY J:	Yes, I think I put that badly. It is objective in the sense that you have indicated perhaps but it
is fear of being persecuted rather than the probability
of being persecuted or the risk of being persecuted or the chances of being persecuted with which the
convention is concerned, is it not? I mean some
of those considerations might. well go to bear upon the existence of non-existence of the fear but it is the well-founded fear of being persecuted with
which we are ultimately concerned?
MR CALLAWAY:	Your Honour, yes, but the words "well founded" mean that the fear has to be not only sincerely
apprehended or felt, or entertained, but must be
objectively justifiable in the sense that these
various phrases in the House of Lords endeavour to elucidate. The reason for that, as I submitted earlier, is so that the convention will not be for the benefit of people who do not really need the
protection and the scarce international resource can
be used on people who are not only sincerely afraid
but are sincerely afraid for objectively realistic reasons.

(Continued on page 77)

C2T46/3/MB	76	6/4/89
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MR CALLAWAY (continuing): Of course, our sutmission wh~ we come to

the meaning of convention is that this is all

to be answered as at 1986.

McHUGH J:  What is your submission about the basis of

the delegate's finding? Did he find that he

had no fear, or did he find that he had no

well-founded fear, or did he find both?

MR CALLAWAY:  Your Honour, clearly the delegate found

that if there was any fear it was not

well-founded. It may be that the delegate
did not have to reach a final conclusion as

to the sincerity of the fear if the delegate

was of the view that it was not well-founded.

Having regard to the credibility matter, the

delegate may have found this a sensible way

of resolving the matter that the fear, even

if sincere, was not well-founded, judged as at

1986.

Your Honours, just to complete the list of

passages in SIVAKUMARAN on which we rely, at

page 103, letter G, is the passage I referred	to earlier on the onus of proof - 11f he can
establish to a reasonable degree:' At the bottom of the page, the last three lines, His Lordship,
having referred to the submissions made by
counsel for the High Commissione.r, rejected them
saying:

The objects of the Convention are, in my

opinion, consistent with the interpretation

of the Secretary of State, for those objects

will surely be fulfilled if refugee status

is afforded in cases where there is a real

and substantial risk of persecution for a

Convention reason.

Then at letter F His Lordship said:

For the true object of the Convention is

not just to assuage fear, however reasonably

and plausibly entertained, but to provide a

safe haven for those unfortunate people whose fear of persecution is in reality well-founded.

We respectfully adopt that passage.

to Dr Grahl-Madsen I s work, as indeed I shall have to do	Your Honours, my learned friend referred shortly. There was one particular passage at
page 176. I do not desire to read it again but
it did refer to the "regime no longer prevailing"
and we would respectfully emphasiz2 that reference.
This is, in our submission, a classic case where
general knowledge tells one and general knowledge would

C2T41/1/JM	77	6/4/89
Chan(2)

have told.the-dele~ate that the re~ prevailing when

Mr Chan left China was a very different regime

from the present government of the People's

Republic.

GAUDRON J:  I do not understand the word "regime" in that

context.

MR CALLAWAY:  Your Honour, I use it only because it is

Dr Grahl-Madsen's word. I do not in any way

seek to characterize the government of China

at either stage as a regime, but "regime" was

the word I noticed in Dr Grahl-Madsen's passage

at paragraph 176 that my learned friend read

this morning.

Next, Your Honours, my learned friend,

from time to time this morning in different

parts of his submission, referred to letters

written by the appellant's brother and in

particular referred to passages at pages - in the

order my learned friend referred to them - 96,

then 94 and, I think the third one was 95. I

do not desire to take up the Court's time by
reading them, but I would respectfully ask the

Court to treat those letters with the utmost

caution if they are read. Very often one

finds that what the appellant's brother is doing

is suggesting to the appellant what the appellant

should be saying to the Australian authorities,

Sometimes in those letters where there are sentences beginning "I", if you read them in the context

you find this is the brother saying, "You should
say to the authorities 'I fear'" - this, that

or the other thing. We do not suggest the Court should not read the letters, but the letters are

very often, on their face and quite bona fide,

the appellant's brother suggesting what the claim

should be. They are, if one may say so without

disrespect, a little bit reminiscent of question 86,

in page 160 of the appeal book in the record of

interview - I do not ask Your Honours to go to it -

when the interviewer asked Mr Chan what would

happen if he was sent back to China and the

answer was "I ask my solicitor". When the interviewer

persevered Mr Chan eventually gave what he claimed

was his own answer.

Your Honours, in our contention number 8 we endeavour to address the theory - as the Americans

would say - in the notice of appeal that an error

in construing the protocol, because the convention plainly does not apply here, would not found - the

notice of appeal says that an error would be a case

of manifest unreasonableness and the notice of
appeal says that unauthorized and improper delegation

would be a matter of maBifest unreasonableness.

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MR CALLAWAY (continuing):  In our respectful submission

that just is a mischaracterization. We do not

wish to take up the Court's time by exploring

that. There are just two things we should say.

The reason we refer to GUNALEELA is this:	in
GUNALEELA at the pages mentioned in the

contentions the Full Court of the Federal Court,

without deciding the point, entertained the

possibility that an error in construing the

convention might sometimes amount to
unreasonableness but that was in a context where
section 6A did not apply. Gunaleela and the

other persons concerned in that case had not

entered Australia and therefore 6A did not apply;

that is why it was not a decision under an

enactment.

It is easy to see why, in those circumstances, misconstruing the convention might not be an

error of law because the convention does not

have the force of law in Australia, it is simply

referred to in section 6A and section 6A

ex-hypothesi does not apply. And whilst we would

not, ourselves, accept or adopt it one can see
how an argument might be developed that where

section 6A does not apply and therefore the

convential does not apply by incorporation into

domestic law, an error in construing the convention

might somehow be got in under the heading of

unreasonableness.

Whether that is right or wrong that is not

this case because on the concession that we made,
this is a decision under an enactment, this is

a matter under section 6A and section 6A(l)(c) directs the Minister to make his determination

in accordance with the protocol and the convention.

So here, in our submission, it would not be

appropriate to say that if there were an error

And, of course, our primary submission is that it was a case of manifest unreasonableness.	there is no error in any event but that is part C
of our contentions.

I said there were two things that we must

mention.	The second is, again, one of these
matters of discharging our duty.	In the light

of what we say in paragraph 8 of our contentions

I feel bound to tell Your Honours that in the 1989 third edition of a work entitled General

Principles of Administrative Law, written by

Professor Sykes, Professor Lanham and my learned

junior, there is a paragraph 1134 which refers

to some cases that are said to be supportive
of the proposition that error of law can go to

unreasonableness.

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First I should say that my learned junior

tells me that he did not write that part of the

book and, secondly, we looked at two our of three

of the cases; in particular we have looked at

the one that seemed possibly relevant, REG V

THE HOME SECRETARY EX PARTER, which is reported

only in the Times, but when one looks at it one

finds that it is not a case of manifest

unreasonableness, it is a case of unreasonableness

in the other wide, comprehensive sense that

Lord Greene referred to and it is a case of

failing to take into account relevant matters
or taking into account irrelevant matters.

So, with respect to the other two authors

of the textbook, at least that case does not
substantiate the point either. I may say,
Your Honours, in GUNALEELA where the Full Court

discussed the possibility that error in

construing the convention when 6A did not apply

might be a matter of unreasonableness referred

to a decision in England called EX PARTE KHAN,

(1984) 1 WLR 1337, at pages 1351 to 1352 - I

do not desire to read it, Your Honours.

If one chases that up and read it, one finds

that that, again, is quite expressly a case not

concerned with narrow, manifest unreasonableness

but concerned with unreasonableness in the

comprehensive sense to which Lord Greene also

referred in WEDENSBURY. We come, then,

Your Honours, to what, in our submission, is

the heart of this case. I say that for two reasons:

first, this is the basis on which special leave

was granted; and, secondly, in our submission,
my learned friend really stands or falls on this

part of the case.

If my learned friend can persuade Your Honours

that the definition does mean that the delegate

should have first considered the position in

the cessation clause applied, then it is true	1974 and should then have considered whether
delegate did not do that and it would be difficult
to resist the conclusion that the matter should
be sent back to the Minister for redetermination.

(Continued on page 81)

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MR CALLAWAY (continuing):  But if, as we hope we can persuade

Your Honours, the true view is that the delegate did the right thing and applied the definition in

article 1A(2) in 1986, the cessation clauses never

becoming relevant, then it is submitted it is very

difficult for my learned friend to show that it was

a case of manifest unreasonableness. So that, in

our submission, this is the heart of the case. If

I might ask Your Honours to go first to the orotocol to

show how this, strictly speaking, arises.· -

Your. Honour Justice Toohey referred earlier this

afternoon to the fact that the convention had a

date-line in it of 1 January 1951. The protocol is

at page 44 of the appeal book and the preamble refers

to the date-line. Then what is done is not to amend

the convention; the protocol is an independent treaty.

For example, the United States is a party to the

protocol though not to the convention.

The way the desired result is achieved is that

in article 1 paragraph 1 the parties to the protocol

undertake to apply the substantive provisions of the:

Convention to refugees as hereinafter defined.

And then the definition is the definition in the

convention but without the reference to events occurring

before 1 January 1951. And it is in that way that one

is sent back to the convention. It is common ground,

I think, that Mr Chan would not fall under the convention.

He would fall under the protocol, if he fell under

either treaty, but the protocol directs one back to

the convention.

One then looks at article 1 of the convention;

the definition of the term "refugee." Section A says:

For the purposes of the present Convention,

the term "refugee" shall apply to -

two classes of persons. First, a person who:

Has been considered a refugee under -

certain earlier international instruments and,

Your Honours :

Has been considered -

means "has been recognized."	Dr Grahl-Madsen himself
says that in section 52 of his book.	I will take

Your Honours to the book later, but I just flag now

that Dr Grahl-Madsen says, "has been considered" means,

in effect, "has been recognized. And then, still in Al

the convention goes on to say:

C2T49/l/VH	81	6/4/89
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Decisions of non-eligibility -

which rather shows that Dr Grahl-Madsen is right in

construing "considered" as, in effect, "recognized -

Decisions of non-eligibility taken by the

International Refugee Organisation during the
period of its activities shall not prevent

the status of refugee being accorded to

persons who fulfil the conditions of

paragraph 2.

Then pargraph 2 contains the definition which

Mr Richardson, the delegate, applied.	One then goes
to C, and C says:

This Convention shall cease to apply to any person falling under the terms of

Section A.

And, as we submit in paragraph 10 of the contentions - I am taking paragraphs 9 and 10 together because it is

easier to do so:

any person falling under the terms of

Section A -

means either a person who has been considered, ie,

recognized as, a refugee, under the earlier arrangements,

or, in our submission, a person whom, a contracting

state - in this case, Australia - has recognized as

satisfying the criteria in A2.

DAWSON J:	Why do you say that second part?
MR CALLAWAY:	Your Honour, we say it essentially for two reasons.

First, we say it is implied by the reference to

recognition in CS and we would also say that it is

implied by the reference at the third line of page 24

to the: 

status of refugee being accorded to persons

who fulfil the conditions of paragraph 2.

We say it for three reasons; that is the first.	The
second is that,in MAYER's case, to which I shall

shortly go, we submit there is much material in the

judgments of this Court supportive of this view of

the convention. But, thirdly, we submit that it

makes sense. The purpose of section C, in our

submission, is to protect people against constant

review of their cases; if one likes, against a species

of double jeopardy.

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MR CALLAWAY (continuing):  Take the A(l) people first: if

you have been considered, that is, recognized,

adjudicated as a refugee under the previous

arrangements, then you are deemed to be a

refugee under this treaty and the effect of C

is that you are not subject to constant review.

You only lose the benefit of that earlier determination -consideration to use the words of A(l) -if a cesser clause applies.

Similarly, in our submission, the purpose

of C in relation to A(2) is that once a country

has made a determination that you fall under A(2),

you are not liable to constant re-review. You are

only liable to lose the benefit of that determination

if one of the clauses of C applies and we submit that

that makes entire sense in C(S) of the words "the

circumstances in connection with which he has been

recognized as a refugee", have ceased to exist.

Your Honours, in our submission, it would be very

surprising if it were otherwise because my learned

friend's submission:- lliri.ch certainly draws some

support from Dr Grahl-Madsen's work - would mean that

in the case of a person claiming to fall under A(2),

one would have to go back and perform an historical

exercise and that would be very difficult. It could

be unfair to the refugee and unfair to the contracting

State whereas our construction, our submission means

that you apply A(2) at the time you make your

determination. Once you have made a determination you are not entitled to keep re-reviewing the case. After that, the person is entitled to C, because

in the words of C, "thereafter he is a person falling

under the terms of section A", as we submit it should

be construed.

It is even worse than that, Your Honours, because

take somebody who was persecuted in the 1930s but who,

for some reason, had never been recognized as a

refugee under the previous instruments, a person	therefore who would not have the benefit of A(l),
who may have been a refugee under the previous
arrangements but had never been "considered" a
refugee under the previous arrangements and
Dr Grahl-Madsen says such a person cannot benefit from A(l) - say such a person then turns up in
Australia or any other contracting State and says,
"Well, I want to bring myself within A(2)", something
the person is plainly entitled to do because the first five lines of page 24 of the appeal book expressly say
that, on our construction one then applies A(2) at the
date of the application for status. But, on my learned friend's submission, the government of the
contracting State would have to go back and investigate
conditions in the 30s.

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DAWSON J: This all fits well with overseas refugees as well,

does it? There is no anomaly when you look at

overseas refugees as opposed to those who are in

the country.

:t'1R CALLAWAY:	We submit that is so, Your Honour, yes.
DAWSON J:	How would it work there?

:t'1R CALLAWAY: Well, in either case, Your Honour, you would

address the situation as it is now. If a person

applied overseas and said, "I am a refugee", in

1989, the decision maker would say, "In 1989, does

this person satisfy the criteria in A(2)?" not, "Did

this person satisfy the criteria at some time in the

past and has a cesser clause applied?" unless

Australia had previously made a determination in

relation to that person, in which case he or she

should be protected against constant review and

would be entitled, under the convention of the

treaty at any rate, to say, ''You have made a

determination in my favour but I have not fallen

within a cesser clause".

McHUGH J: Well, the strong point in your favour seems to me

that the whole question of whether he is a refugee

in so far as a particular country is concerned does

not arise until a particular person claims to a

particular country that he is a refugee; he should

be admitted into that country and rather looks at

the situation as at that moment, rather than asking

was he a refugee at some anterior point of time and has

he ceased to be a refugee.

:t'1R CALLAWAY:  That is our respectful submission, Your Honour,

and we submit that that is the natural reading of

the words. We also submit that that is the way the

words must have appeared to members of this Court

in MAYER 's case.

DAWSON J: Except, if I might just take you up, if you look at

article 33, that would rather be robbed of any content

if what you say is right in relation to, at least,

overseas refugees.

:t'1R CALLAWAY:  It is submitted not, Your Honour, because if a

person claims to be a refugee and desires to be

protected against a,refoulem~nt, the person has to

show that, as at now, 1989, he satisfies the criteria

in A(2). If the person does satisfy the criteria in

A(2), he needs the protection of article 33 and gets

it.

, DAWSON J:  But if someone turns up in a boat on the shores of

Australia, he is not a refugee because there has been no recognition, you, therefore, just repel them.

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84 :t'1R'CALLAWAY, QC 6/4/89

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MR CALLAWAY:  No, Your Honour. In our submission, this is

what lay behind the words in our contention, l0(b),

a contracting State that is concerned to fulfil

one or more of its obligations. In our submission,
the way that works is that somebody turns up and

says, "I am entitled to the benefit of article 33." That, for the first time,requires Australia to make

a determination of whether that person is a refugee

for the purpose of deciding whether Australia's

international obligations extend to protecting that

person under article 33, and that requires a

determination but one makes it as at now, one does

not inquire into the history or the prehistory of
the person claiming the protection.

There is, Your Honour, no obligation to make some general in globo determination for this treaty.

In our submission, the way it works and the way the court said it works in MAYER is that when -

DAWSON J:  You cannot fulfil the obligation under 33 unless

you determine that a person - - -

MR CALLAWAY:  That is right, Yourr Honour, yes, and it is

done on a need basis. Might I take Your Honours

to the decision in MAYER because it is central

to our submissions on this part of the case. That

was the MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V

MAYER, (1985) 157 CLR 290. Your Honours, that was

a case of a resident of Irian Jaya who did have a

temporary entry permit and was denied refugee status

and requested reasons. The reasons were refused

and the question was whether the decision to refuse

refugee status was a decision under an enactment.

Your Honour the Chief Justice, Mr Justice Deane and a decision under an enactment, that in those

circumstances the Minister's authority derived from

section 6A.	The Chief Justice Sir Harry Gibbs
and Justice Brennan took a different view but there

are passages in all the judgments which, in our

submission, are relevant to this present matter and

supportive of the construction for which we contend.

The first, at page 294 point 2, in the judgment of

Sir Harry Gibbs at about line 12:

Neither the Convention nor the Protocol

requires a contracting state to establish

any particular procedure for the determination

of the q11estion whether a person has the

status of refugee within the meaning of the

Convention and the Protocol. Rather, the

term "refugee" is defined ..... and the rights of

refugees, and the obligations of contracting

states in respect of them, are then stated.

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Then His Honour refers to the fact that obligations

are owed to the contracting states, and we rely on

that passage and the further discussion through to

295 point 2. Then in the joint judgments of the

majority at the top of page 2.99 Their Honours said:

The convenient starting point of a consideration

of the nature of a determination of the kind

mentioned in s.6A(l)(c) is an examination of

the Convention and the Protocol to which the

paragraph expressly refers and to which any

such determination will relate.

Their Honours then referred to the definition and two-thirds of the way down the page continued:

Each of the Convention and the Protocol refers to the

"status" of refugees in its title and in its

preambles. So used, the word does not refer

merely to the fact that a person is a "refugee" within
the meaning of the Convention or the Protocol.
Rather, it is a compendious reference to the

"right", "benefits" and the "duties" of persons who are "refugees" in the various circumstances

to which different Articles of the Convention. (and
Protocol) refer. In that sense, the "status"

of a particular person under the Convention and

Protocol is a temporal one depending upon whether

or not the person comes within the definition
of "refugee" at the relevant time and upon his or

her particular past or present circumstances.

Thus, for example, Art. 10 of the Convention contains

special provisions relating to the "(c)ontinuity

of residence" of a refugee who "has been forcibly
displaced during the Second World War" and removed
to or from the territory of a Contracting
State while Art. 11 is restricted to dealing
with the case of refugee seamen serving on board
a ship flying the flag of a Contracting State. (Continued on page 87)

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MR CALLAWAY (continuing):

The corollary is that the obligations of

a State Party in respect of a person depend

upon the particular circumstances in which
the person is placed and upon whether or

not he or she is a "refugee" within the

meaning of the Convention or the Protocol.

There is nothing in the Convention or

Protocol which expressly or impliedly calls

for a general determination by a State Party

that a person enjoys the abstract ~status

of refugee within the meaning of" the

Convention or Protocol. The most that the

Convention and Protocol do is to require

that a State Party determine whether or

not a person who is within or is claiming

or seeking entry to its territory is a

"refugee" at the particular time and, if

he or she is, to define what that State's

actual obligations are in respect of that

particular person in the particular

circumstances in which he or she is placed.

Your Honours, we particularly rely on that passage

which we respectfully submit is strongly supportive

of the construction of the convention for which

we not contend.

Then, again, at page 302 - I shall not read the passage but it is almost the whole of the

page - from 302 point 2 to 302 point 9, the joint

judgment refers to the temporal nature of a

determination and it is submitted that while

that is speaking of 6A(l)(c) it is also consistent

with applying the definition of the convention
in 1986 and not inquiring into Mr Chan's position

in 1974.

of the treaty, at page 305 point J through to	In Justice Brennan's dissenting judgment the discussion
306 point 4, is also, in our submission, consistent

with the construction that we are submitting to

the Court is the correct one. And, finally,

we notethat at page 307, line 5, His Honour refers

to a determination producing a legal effect in

international law.

Your Honours, MAYER's case is not the only

authority in this Court that is supportive of

the construction of the convention for which

we contend. There is also the decision of

Mr Justice Stephen in SIMSEK V MACPHEE, decided

in 1982, 148 CLR 636. That was a case of a person
who, in effect, was claiming the protection of
the treaty and much of the judgment is concerned

with the doctrine in our law that a treaty does

C2T52/l/ND	87	6/4/89
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not become part of domestic law unless and until

the Parliament gives it that status. ·But at

pages 643 point 1 to 645 point 4, His Honour

discussed the various aspects of the treaty in

words consistent with our submission.

At the top of the page His Honour said:

There is, quite apart from the above, a

further difficulty for the applicant in

this submission. He must show that what

he complains of is in some way a breach

of the Convention and Protocol. The present

state of affairs is that his claim to refugee

status is being examined by the -

DORS -

Committee ..... and it is the procedural aspects

of that examination that are complained

of. But the Convention and Protocol are

silent on that score ..... they establish

no particular procedural process for the

purpose of determining whether any individual

is in fact entitled to refugee status .....

"It follows from this that each contracting

state may establish whatever procedure it

seems fit for the purpose of such determination".

Then there is a reference to articles.

This being so, the applicant, even were he entitled to a remedy in this Court

for the non-observance of rights conferred

upon him by the Convention and Protocol,

can point to no such rights which he is

at present being denied. The reference

in the Convention to a right of representation

applies only to those who have been recognized

as possessing refugee status -

(Continued on page 89)

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MR CALLAWAY (continuing): If Your Honours go to article 32,

Your Honours will see that that is concerned with

the duties of contracting states proposing to

expel a refugee who is lawfully in their territory

and paragraph 2 of article 32 - at page 33 of the

appeal book - gives such a person a number of

rights, including - second last line - the right

to be represented. What Mr Justice Ste is

saying is the reference in the convention to a

right of representation applies only to those who

have been recognized as possessing refugee status.

His Honour is there, in our submission, applying

precisely the test that we propose, that when a

country is concerned to determine whether it

must observe one of its obligations, it then
makes a determination whether a person at that

time is a refugee; it either accords that status

or not.

Your Honours, we are not to be taken as saying recognition of status is entirely

constitutive. The trouble is that when one

speaks of recognition being declaratory or

constitutive,that conceals the real issue.

Text writers say that a determination recognition

is declaratory, not constitutive. We accept that

if what it means is that it is not constitutive

in the sense that you are simply not a refugee

until you are recognized and if you are not

recognized a state party can ignore its obligations.

No doubt it would be a breach of Australia's

international obligations if Australia took the

view that until we had recognized somebody as

a refugee they were not in law at all a refugee.

There is an obligation to make a determination

on the facts and the determination recognizes that

the person is a refugee. All we need to submit

for the purposes of this case is that article lC

has no application until a determination has been

made.

Without reading it, Your Honours, in the

remainder of Mr Justice Stephen's judgment there are a number of references to "according refugee

status" which, we submit, are consistent with our

submission that until there has been a determination

there is no work for article lC to do.

DAWSON J:  You can go further than that and say that nothing

flows from refugee status so far as convention is

concerned until its recognition.

MR CALLAWAY:  In substance, Your Honour, with respect, that

must be right.

DAWSON J: In general.

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MR CALLAWAY:  If one had a government which simp~y said

it does not matter whether somebody plainly

fears - I do not mean a government in Australia,

but a hypothetical government somewhere in the

world which was a party to the convention and

said, in so many words, "Plainly this is a person

who fears persecution on objective grounds

but we refuse to accord recognition and unless

we do, the person is not - - -

DAWSON J: But that is something different. There is

an obligation - - -

MR CALLAWAY:  In that sense it must be declaratory rather

than constitutive, but we do not go any further

than that.

DAWSON J:  But you say there is an obligation under the

convention then to recognize in those circumstances

refugee status where it exists?

MR CALLAWAY: Yes, and as at the date at which the matter

is relevant, Your Honour.

DAWSON J: That is different. Yes, I see.

MR CALLAWAY:  Your Honours, in contention l0(b) when we

refer to a person "whom a contracting state"

we mean, in our own case, Australia. We do not

wish to imply that Australia would necessarily

be obliged to accept the determination of other

contracting states and it is not the practice

of the Commonwealth Government to necessarily accept

other people's determinatio~,but that is

consistent with our construction. When the occasion arises for a country, in this case

Australia, to decide whether a provision applies,

then that country makes the determination. If it is favourable, section C then protects the person against constant review.

Your Honours, what remains under this

heading of the case is to say something about

Dr Grahl-Madsen's work. It does appear to be

the leading textbook and it is fair to concede

that Dr Grahl-Madsen does take a view similar to

that of my learned friend, Mr Dwyer, that once a

person has in fact satisfied the criteria under

A(2), with or without recognition, the person is

and remains a refugee until and unless the

cesser clauses apply. We do not shy away from submitting that to that extent Dr Grahl-Madsen

is mistaken in his interpretation of the convention.

There is a great deal in Dr Grahl-Madsen's work

that we entirely endorse, but on that point we say

that the words of the convention are clear, that

our construction makes better sense of them and that

it accords with the way the words of the convention have
appeared to members of this Court in relatively recent

times.

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}ffi CALLAWAY (continuing):  I will, therefore, be as brief as I

can, but may I just take Your Honours to a number of

passages in Dr Grahl-Madesen's work. We have,perhaps,

photocopied rather more than we should have'. but we

were rather concerned with a work like this, not

inadvertently to mislead the Court just by giving

Your Honours pages that suited us. We have tried to

photocopy anything that might be of assistance, but

I hasten to say to Your Honours that I am not about

to read all that is being handed up, or anyting
remotely approaching even a fraction of it. All I

propose to do is to explain the reason some of the

pages have been included and to put Dr Grahl-Madesen's

work in context because, on one view it is the only

obstacle, in our submission, to the acceptance of

our construction of the treaty.

First of all, Your Honours, we have included the

foreward because half-way down the page, the

High Connnissioner distances himself to some degree from Dr Grahl-Madsen and emphasises that it is

Dr Grahl-Madsen's independent view. We have included

the preface because, again, at point 6 of the page,

Dr Grahl-Madsen also says that he received much assistance from the High Connnissioner on the understanding that it would be an independent work

for which he, and not the High Connnissioner, would

be responsible. At page 49, point 5, Dr Grahl-Madsen

himself says!

A publicist can, when it comes to the final

test, only be judged on the soundness of his

reasoning.

Then we have included pages concerned with the meaning of ghas been considered" to show that it means

''has been recognized." If Your Honours first go to

page 108 where the author begins his discussion of

article lA(l) Refugees, the so-called "Statutory

Refugees", point 5 of the page:

The purport of these provisions is to give

the refugees who were considered as such at
the time when the Statute became effective and
the Convention entered into force the benefit

of these new instruments without a renewed

test of their eligibility.

Hence, they are usually called "statutory refugees".
Page 109, bottom of the page, right at the bottom of

the page:

The words 'has been considered a refugee' imply

that in order to come within the ambit of

Article lA(l) of the Convention ..... a person

must have been formally or informally, tacitly

C2T54/1/VH	91	6/4/89
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or expressly, recognized by a competent

municipal or international authority as a

refugee in accordance with the instrument

in question.

A person who might have qualified under

any of the instruments concerned, but who,

for some reason or other, has not been

recognized as or otherwise 'considered' a
refugee, may consequently not invoke
Article lA(l) ..... It does not matter why the
person concerned has not been considered
a refugee: whether he did not ask to be
considered a refugee, or if his application

a party to the relevant instrument.

for recognition was rejected, or if the

And that is what lay behind my submission that my

learned friend's construction could require a

government to inquire into events in the 1930s if

somebody had not been considered, ie, recognized

before the present treaty came into force.

Then, at page 116, middle of the page:

It may consequently be concluded that a

Contracting State is bound to accept by

virtue of Article lA(l) of the Convention

any recognition of a refugee under any of

the agreements mentioned therein -

and so forth. The Australian Government would not accept

that it must automatically accept other people's

determinations. The importance of the passage is to

show again that "considered" means "recognized".

(Continued on page 93)

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MR CALLAWAY (continuing):  In Mr Chan's case, of· course,

oµr position is, if I may respectfully say so,

rather stronger. Mr Chan has never been

recognized by anybody as a refugee.

GAUDRON J: Would it matter to your argument if he had

been? For example, if he had been recognized

in Hong Kong as a refugee, came to Australia,

all:eit illegally, and sought to have that status, that

recognition confirmed, if you like, would it

matter on your interpretation?

MR CALLAWAY:	No, it would not, Your Honour, because we say as a particular country has occasion to discharge
its obligation it must make a determination and,
in regard to that country, the person is then
protected in accordance with C.  But on the facts
of this case that is a mountain we do not have to climb because no one has ever recognized
Mr Chan as a refugee and I think that that is
common ground. Indeed, it appears in the materials,
I think at page 38 - - -
GAUDRON J:	Yes, do not trouble yourself with it, I was

just asking as a matter of construction.

MR CALLAWAY:  It is not 38 but I do not think there

is any doubt that is so, Your Honour. We have

included a number of pages and not just 177,

note 57, which tend to favour my learned friend's

argument.	As I say, we have bent over backwards
to be fair, perhaps we went too far.	But if

Your Honours would look at page 120 because this

will become relevant later on, Your Honours will

see a reference to two French cases, near the

top of page 120, ROSNER and DEUTSCH. And

Your Honours will notice that they are cases

under article lA(l).

If one then goes to page 369, a discussion

of the cessation clauses began at 367; at 369

is "The Exhaustiveness of Cessation Clauses"
and is, as we understand it, the central discussion

in Dr Grahl-Madsen's work of this matter that

separates the appellants from the respondent

in this case. The author says:

It is generally agreed that the enumeration

of cessation clauses in Article IC of the

Refugee Convention ..... is exhaustive.

We are not concerned to argue against that if

section C ever comes into operation. But if

there has been no determination a person does

not fall under the terms of section A, we do

not get to the point of inquiring whether the

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list is exhaustive or not. It probably is

exhaustive but we never reach that point until

a person falls under A.

In other words, once a person has become a refugee as defined in article 1 of the convention

he continues to be a refugee until he falls under

any of those cessation clauses. We part company

with the learned author there but only to this

extent, that we say that it is once a person

has been determined by Australia or whatever
the relevant country may be as falling within

article 1 then he does, indeed, continue as a

refugee until he falls under the cessation clauses.

Your Honours, like my learned friend,

Mr Dwyer, I do not read German but the bit of

German that follows is pretty easy and with the

aid of a dictionary it seems to say much the

same as the preceding paragraph:

Article lC of the convention contains an

exhaustive enumeration of the cases which

no longer fall under the treaty.

We do not know whether that was said about an
A(l) person or an A(2) person but, either way,

there is nothing in it with which we would wish

to quarrel. It may well be an exhaustive

enumeration, we would add, once a determination

is made.

Your Honours will see that the next two

authorities referred to are those cases of DEUTCH

and ROSNER which were article lA(l) cases. And

in the footnote 54 there is a reference back

to a German case, 137 VIII of 1958 but that case,

also, was discussed back on page 120 and I certainly

cannot work out that passage in German even with

the aid of a dictionary but evidently that also

was a lA(l) case.

At page 370, Dr Grahl-Madsen turns to another

issue altogether. And at 370 point 4, the last

sentence of this part of the book says:

If a person has fallen under a cessation

clause before he has been formally recognized
as a refugee, this has been considered a

bar to his recognition -

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MR CALLAWAY (continuing):  Now, Your Honours, in our submission,

that draws much of the sting from Dr Grahl-Madsen's

belief that section C works in relation to A(2)

refugees in the same way as it does to A(l) refugees.

In the case of A(l) refugees, the statutory

refugees, then, of course, it would be true. You

do not fall within A(l) unless you have been

considered, that is, recognized, as a refugee and

one could understand, then, why you would be

protected until one of the cessation clauses

applied. It is not surprising that the cases

cited seem - all or many in that section - to be A(l)

cases. It would just follow from the nature of A(l)

but in the case of A(2) it is by no means obvious that
the construction should follow that one conducts an

historical exercise.

We take Your Honours to these pages just to show

that it is not as if Dr Grahl-Madsen's argument is so powerful or so well .supported by authority of a

kind that would be of assistance to this Court but

it is a serious obstacle to the construction that

the Court itself has appeared to favour in MAYER

and SIMSEK.

Your Honours, it is,in our respectful submission,

a very dangerous exercise for this Court to try to

construe the convention by reference mainly to

French and German decisions, not knowing the facts,

not knowing what other decisions there may be, bearing

in mind that Dr Grahl-Madsen's work itself was written some years ago, 1966. It is safer, in our submission,

for the Court to construe the treaty for itself.

I turn now to the delegation point - - -

McHUGH J: Well, before you do that, could I just ask you what

you have got to say about this point: the relevant

fear of the appellant in this case is that he would

be imprisoned on his return to China for past political

activity and the ground of that fear seems to be that

the views of the government have not changed enough

for him to avoid punishment. Having regard to the

state of the evidence before the delegate and having regard to the principles concerning benefit of doubt,

how could the delegate reasonably reject that claim of his?

MR CALLAWAY:  Your Honour, in the first place, even if the claim

were accepted, it would be open to the delegate to
conclude that such - one does not like to use the

word but - attention, as Mr Chan might receive in China, would not be persecution for reasons of

political opinion but he might be punished for having

broken the law applicable in China in 1974 but he

C2T56/l/SH	95	6/4/89
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would not be persecuted for reasons of political

opinion, even if his case is taken at its highest.

McHUGH J:  But is not the difficulty about that, Mr Callaway,

that there is just a total absence of evidence.

MR CALLAWAY:  No - - -

McHUGH J: The question of onus and the way you attack it seems

to me at the moment anyway to be of very considerable

significance in this case.

MR CALLAWAY:  Your Honour, that was on the assumption one accepts

what Mr Chan says and, even then, one might conclude

that it would not fall within the terms of the treaty but the other aspect is that it is not to be supposed

that the delegate did necessarily accept the

genuineness or objective basis of Mr Chan's suggested

fear that he would be punished in any severe fashion

when he returned to China. The implication in the

delegate's reference to receiving some attention is

that he did not accept that and the.Full Court, at

pages 255 to 256, referred to the kind of factors

that would enable the delegate to reach a decision

adverse to Mr Chan, notwithstanding the matter to

which Your Honour refers, particularly - - -

McHUGH J: Well, I know the reasons they give but take line 25

on page 255 when they say:

The decision makerwas entitled to take the

view that the imposition of punishment .....

would not now be likely, given the length

of time since that conduct occurred and the

substantial changes in the political situation -

since he left. But, what evidence is there and if

you approach this sort of case on the basis that you

have got to approach a claim under the repatriation

tribunal statutes where there is, in effect, a reversal

of the onus of proof,which seems to be the approach in

the textbooks and the guidelines, given that you have

got a plausible claim, what evidence is there to

support that assertion?

(Continued on page 97)

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MR CALLAWAY:  Your Honour, we would submit that the delegate

need not have accepted the truth of what Mr Chan
was saying. The delegate was entitled to share

the scepticism of the DORS Committee as to what

Mr Chan had said about that. It was for Mr Chan to produce

some facts, some evidence, to·attract the benefit of

the doubt. We do submit that even the learned works

like Professor Hyndman's article and so forth do say

that onus of proof is on the applicant for status.

It is not for us to have the evidence, it is for the applicant to at least show the plausible case. If

one reads the DORS Committee's minutes and the

delegate's reasons, we submit it was open to the

delegate simply not to believe enough of Mr Chan's

claims to think that he would be persecuted on return

to China.

McHUGH J: Well, I have read the reasons many times and I really

cannot see that the delegate rejected his evidence

that he had that belief. It seemed to me that the

delegate's judgment turns on the objective aspect

of the case.

MR CALLAWAY: Well, Your Honour, the delegate, we submit,

impliedly rejects the full version of Mr Chan's claims

in saying that while he might receive some attention

he would not be persecuted, that that suggests the

delegate simply does not accept the truth of it.

The credibility problems show that the lack of

substantiation by Mr Chan, any basis, as the Full

Court says, for his belief, leave the delegate reasonably unpersuaded in giving Mr Chan the benefit of the doubt that he satisfies the criteria.

McHUGH J:  Why in paragraph 12, then, does he talk about a

well-founded fear rather than saying the applicant

did not have a fear of persecution?

MR CALLAWAY:  Your Honour, simply because he has recited in

paragraph 7 what the test is and he is reaching

his conclusion in terms of the test. It is submitted

that no further inference really can be drawn from

that, that it is a perfectly correct conclusion to

reach and whether he reached it because he believed

there was no fear or whether he reached it because

he thought that there may have been fear but on
no view was it well-founded, either way he would not
have misdirected himself, in our submission. It

is a matter of impression, Your Honour - - -

McHUGH J:	Yes, thank you, Mr Callaway.
MR CALLAWAY:	- - - but, we submit, that it was notso unreasonable

that no reasonable delegate could reach it and we

do respectfully adhere to our submission that the

onus of proof does lie on the applicant, despite

all the benefit of the doubt;the UN handbook says

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and Prof.. Hyndman says that, SIVAKUMARAN says that.

The benefit of the doubt is when somebody has put

up a reasonably plausible sort of case but

understandably cannot prove it in the usual way.

There is no reverse, or it is not for us to produce

evidence, it is for Mr Chan to put up material where

you can say no reasonable delegate could have failed

to accept this and also then applying the objective

test on top of that. But, Your Honour, it is

important to take into account general knowledge of

what has happened in China since but that was the

second part of the answer to Your Honour's question.

The first part is that in any event the delegate

may well have considered that it simply would not

amount to persecution for political opinion and,

we submit, that would be a very sensible inference

to draw from the totality of these materials.

This is purely hypothetical but I hope that it answers

Your Honour's question further. If Mr Chan went back

to China and was punished, having broken the laws

of China in 1974, it would not follow that that was

persecution for political opinion.

McHUGH J:  No. Well, I put that to Mr Dwyer earlier this

morning.

MR CALLAWAY:  Your Honours, as to the delegation point we make

three submissions which are surrnnarized in the

contentions in paragraphs 11, 12 and 13. First,

we submit, that the point is not open to the appellant.

It certainly was not raised in either of the courts below and the extent to which the delegate

adopted the recorrnnendation of the DORS Corrnnittee must,

to some degree, be a question of fact and strictly

speaking so must the scope of the delegation. It is

therefore a matter on which the respondent might

have wished to file evidence and applying the test

as explained in the majority judgments in WATER BOARD V

MOUSTAKAS, it is covered by the rule corrnnonly known

as the rule in SUTTOR V GUNDOWDA PTY LIMITED.

Your Honour Justice Gaudron dissented in that case

but only, as we understand it, on the application

of the principle to the facts of that case.

(Continued on page 99)

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MR CALLAWAY (continuing):  Your Honour Justice McHugh

will remember the case because Your Honour's view

in the Court of Appeal was upheld in the High Court. But

we do not wish to imply by that that we have anything

to fear from this point. The better answer is perhaps

that if it is open to the appellant to raise

the point now, the material does not suggest that

the delegate, in my learned friend's words this

morning, simply adopted the DORS Committee

recommendation. If one goes to the decision at

page 109, line 16:

make the following statement setting
out my findings on material questions of
fact, referring to the evidence or
other material on which those findings

are based, and giving the reasons for

my decision.

The substance of my learned friend's contention

now, of course, is that those words are not wholly accurate, that they are not really Mr Richardson's findings, or his decision, it is really just the

blind acceptance of the DORS Committee. I say

that just to illustrate our SUTTOR V GUNDOWDA

submission. That is a question of fact if ever

there was one, in our submission. But then when

one turns to page 112, Mr Richardson does not

even say that he adopted the recommendation of the

DORS Committee.	He says that he accepted the
recommendation of the DORS Committee.	When you

accept a person's recommendation that does not
mean that you are involved in improper delegation,

or that you are blindly adopting it. It simply

means that you have considered it and you

agree with it.	He then proceeds to give his reasons
leading up to his conclusion in paragraph 12.	So
that we submit that the point is not right on
the facts.

Finally, we submit that if Mr Richardson

had been minded just to adopt the DORS Committee	recommendation he would have been able to do so.
The Minister himself could do so and we submit that
the nature of the delegation in section 66D of the MIGRATION ACT is such that the delegate.stands in the shoes of the Minister and could, if he
wished, have adopted the DORS Committee recommendation
in the same way that the Minister could.

SEAN INVESTMENTS, as Your Honours know, is a

well-known discussion by Justice Deane of the

ability of a minister, under the legislation in

question in that case, to adopt a recommendation.

SINGH's case is a case where Mr Justice Forster

applied that to this Minister under this Act. We

simply invite the Court to go the next step in the

C2T58/l/JM	99	6/4/89
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argument and to say that the delegate stands in the shoes of the Minister and just as the Minister could have adopted the connnittee

reconnnendation, so the delegate could have too.

We respectfully adopt something that Your Honour

Justice McHugh said this morning that this is

really not a case about subdelgation at all,

but we say the material shows that Mr Richardson

brought his own mind to bear on the matter and

that the point does not arise.

Your Honours, there are two last matters.

First, as to the orders that should be made, our submission is, of course, that the appeal

should simply be dismissed with costs, but if
my learned friend's submission are found favour

with the Court we would certainly ask the

Court not to make the order prayed for at page 267

of the appeal book. In the prayer for relief
the notice of appeal asks that the decision of
the Full Court be set aside and in lieu thereof
there be a declar,ation that Mr Chan is entitled
to a determination that he has the status of

refugee.

Now, Your Honours, if my learned friend

succeeded, the matter should go back to the

Minister. This Court should not decide the

question oi status. We say that substantially

for these reasons: first, we submit that that

is appropriate. It is a very rare case in

administrative law where the Court performs the

function. Particularly would that be true if

the Court adopted my learned friend's construction

of the treaty.	It should be sent back to the
Minister to redetermine according to law.	But

even if Your Honours accepted my learned friend's

reasonableness argument, it is submitted this

is a plain case where it goes back to the Minister.

It is not a rare case where the Court would determine

it.

The other more compelling - perhaps not more

compelling, but another basis is that Mr Justice Keely

was asked for similar relief and refused it. If one

looks at His Honour's order at page 195 of the

appeal book one finds that what His Honour did was

to set aside Mr Richardson's decision and to order

that the application for refugee status be

referred to the Minister for further consideration

in the light of the reasons for judgment. There was

no cross-appeal from that in the Full Court and it

is submitted that my learned friends cannot, as it

were, slip it in in this Court and ask for a

declaration that Mr Chan is entitled to the status

of a refugee.

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Chan(2)

MR CALLAWAY (continuing):  Your Honours, on the subject of

costs, it is, of course, our respectful submission

that the appeal should be dismissed with .costs. All I need add in that regard is that were the

Court to decide that special leave should be rescinded,

in that case, we would submit, there should be no
order as to costs, either of the special leave

application or of the appeal to the High Court but that,

of course, the costs in the courts below would lie

where they fall. Your Honours, unless there is

anything else that I can add that might assist the

Court, those are the submission on behalf of the

Minister.

MASON CJ:	Thank you, Mr Callaway.
MR CALLAWAY:	May it please the Court.

MASON CJ: Yes, Mr Dwyer.

MR DWYER: 

If I could, if the Court please, take up the second-last

point, perhaps, dealt with by my learned friend first,

that is, the question about delegation. This is not

a theoretical point nor an abstruse consideration,

as it were, of the meaning of the precept that the

delegate cannot delegate.  The question has got real

flesh and blood application in this case and it

arises out of my learned friend's submissions. He

says , "Perhaps the delegate did not believe Mr Chan."

Well now, what was the occasion upon which the

delegate could apply his mind to questions of whether
or not he believed Mr Chan. Mr Chan had been
interviewed on a number of occasions by officers of
the department and in an obviously incomplete form,

a transcript of those interviews, or the second one,
was before the delegate.

The DORS Committee had expressed certain views

about credibility, apparently on the papers, and it
said that somehow the delegate, who has got the task
of making the determination, can, on that sort of

material, adopt a position about belief or disbelief.

That demonstrates the problems that arise because

part of the job that the delegate had of making

the determination had been done for him by others.

That is, the question of the assessment of Mr Chan

and the views by officers as to whether or not they

thought there were problems about credibility,

were somehow passed on on the papers to the delegate
who then has to make some sort of decision for

himself about credibility and he just ,-~it- is submitted,

because of the delegation that has taken place, not

in a position to do so.

One might as well say that any court subsequently considering the matter was in a position where it

could believe or disbelieve Mr Chan and the difficulties

C2T59/l/VH	101	6/4/89
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become apparent. It perhaps follows se~sibly from

that point, if I make another. My learned friend

took the opportunity, in the course of his

submissions, to draw the Court's attention to one or two specific points in the record of interview into taking those points to invite the Court to

think that there was some reason for saying that

Mr Chan's account was not a credible one.

If the Court has any concerns of that kind, we

invite a consideration of the whole of what

Mr Chan said in his interviews, both in 1982 and

in 1986, which are in the appeal book, because

our submission is that if one considers the

intervews as a whole, having regard to the difficulties

that_ .Mr Chan was obviously under, and allowing for

the effect which the failure in the second interview

to transcribe the names of places in China that he

was talking about, reduces the impact, as it were,

of the interview itself. We say, making all proper

allowances, treating what he said fairly as he

endeavoured to grapple with the matters which were

put to him by the interviewers, the overwhelming

impression is formed that one does have here a

credible and coherent narrative by Mr Chan. The

points at which, at various stages, he had not been

completely open with the authorities are subsequently

explained by him in ways which are entirely credible

and which we invite the Court to accept.

Now, if I could now perhaps go to take what

my learned friend submitted in more of the sequence
in which he took it. One of the earliest matters that

my friend went to was the question about conditions.

in the People's Republic of China. He invited the

Court to take note of notorious facts, such as the

fact that the cultural revolution is in the past and

that the authorities are now different in some

unspecified way. Indeed, he returned later on to

the same poi:nt.

(Continued on page 103)

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Chan(2)

MR DWYER (continuing):  We simply invite the Court to pay

attention to the fact that the regime remains a

coimnunist one and remains one in which the rule of
law is not respected and in which the fundamental
freedoms which.we have in this society do not

exist and it remains a regime in which people can

and are dealt with in various ways by the

authorities for being anti-revolutionaries or for

being regarded as anti -revolutionaries. And, if that

is what constitutes the substance of my learned

friend's reference to Chinese law when he says that,
"Perhaps if he is punished when he go.es back, he will

be being dealt with for a breach of Chinese law",

that does not assist my learned friend's case

because, plainly, a law which says that you can be

sent into internal exile for being a member of an

anti.- revolutionary family is simply a means by which

persecution for political opinion can take place.

We also made the point that the absence of

material before the decision maker about conditions

in the People's Republic of China.; could I add

to the authorities which I have already sighted to
the Court on tha~ a reference to what is said by

Mr Justice Wilcox in the Federal Court of

Australia in a case called AZEMOUDEH AND ANOTHER V

THE MINISTER FOR IMMIGRATION, 8 Administrative Law

Decisions, page 281 at page 290, where His Honour

says that:

Any decision by or on behalf of the

respondents to reject the claim for refugee

status made by Mr Azemoudeh was apparently

without the benefit of information on a

most material matter ... Xhe situation in

Iran, especially as relating to practising

Christians. No doubt, such information

could have been obtained from a variety of

sources.

lack, or gap, in the information could have been	.Ald His Honour then goes on to consider how that
made good. I apologize for the fact that that case
is not, I think, contained in our list of
authorities but, it was only during the course of
today, that I saw a copy of it.

In terms of the authorities in international

law, as to the question of onus, I did desire to

add to the citations already made, a specific

reference to what is said by Mr Cox in the article

in the Brooklyn Journal of International Law, about

this criterion because our submission is that the

matter was not, in every respect, dealt with

satisfactorily by the House of Lords and, in

particular, because the House of Lords appears, with

respect, to have lost sight of the central role

C2T60/l/JH	103	6/4/89
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which the element of fear plays in the

convention definition.	Cox, at pages 351 and 352
says this:

While the well-founded fear criterion

may be susceptible of some latitude in

interpretation, the following general

assertions may be made with reference to

the Protocol's definition of refugee:

first, the core of the refugee definition

is an individual's fear of persecution;

second, the fear is well-founded if it is

based on reasonable grounds; third, such

grounds are established if a person can

give a plausible account of why he fears
persecution and this account is supported

to the extent reasonably possible; fourth,

an additional objective basis underlying

the person's fear can be required only if the State assists the person in providing

such basis; fifth, an individual must be

accorded the benefit of the doubt; sixth,

the well-founded fear criterion is to be
applied in a non-discriminatory,manner; and

seventh, the well-founded fear criterion is

to be applied as liberally as possible.

Incident to these requisites are the following negative propositions: first, any

interpretation which is primarily objective

and only secondarily subjective is

inconsistent with Protocol mandates; and

second, any State that demands objective

proof but fails to assist the person in

developing such proof is failing to

implement the Protocol fully.

(Continued on page 105)

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MR DWYER (continuing): In the United States' Supreme Court

decision of CARDOZA-FONSECA, to which I have already

referred the Court, at page 453 there is reference

by the court to that article in a manner which, it

is submitted, shows that the court accepts

substantially what it says. The reference is, in

fact - the reference begins on page 452:

The High Cormnissioner's analysis

of the United Nations' standard is
consistent with our own examination of
the origins of the Protocol's definition,

as well as the conclusions of many scholars

who have studied the matter.

Then, there is footnote 24 and that is a reference to

Grahl-Madsen and Goodwin-Gill and they conclude:

See generally Cox, "Well-Founded Fear of

Being Persecuted" -

and they then go on to consider, on page 453, the

relevance of the objective considerations being

referred to.

MASON CJ:  I do not think one can use the footnotes of these

judgments of the United States' Supreme Court as

necessarily having any authority of the judges

themselves.

MR DWYER:  I would accept the role which the associates and

others play in the United States, Your Honour, but

while that may be so as a matter of necessity, it

is submitted that Cox is a most persuasive article -

MASON CJ: Well, yes, you have got the value of what Cox says.

MR DWYER:  Yes, and it is submitted that the Court can place

considerable weight in what Cox says by reason of the materials that he refers to and the persuasiveness of

his argument.

If I could pass to the submission made by my

learned friend concerning unreasonableness and his

submission that an error of law cannot constitute

unreasonableness, I would, in the first place, ask

the Court to go back to WEDNESBURY itself.

(Continued on page 106)

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Chan(2)

MR DWYER (continuing):  It is apparent from

. t!ie judgm'2nt of r,ord Greene in

WEDNESBURY, which is the foundation ot all of this, that there are not watertight compartments in this area and there is no reason in logic,

nor in what His Lordship says, why unreasonableness
should be seen as an exclusive category operating

in some way quite separately from all of the other factors which can undermine a decision

and, indeed - - -

MASON CJ:  You dealt with this in-chief. You do not need

to take much time with it, do you, Mr Dwyer?

MR DWYER:  If the Court pleases. My learned friend did

refer to KAHN's case. If I could take the Court

to what was said in KAHN's case at page 1352:

The categories of unreasonableness

are not closed, and in my judgment an unfair
action can seldom be a reasonable one.

There is one point concerning the close attention to the protocol to which I feel I ought to draw

the Court's attention. One of the differences

between the protocol and the convention is that

the convention definition is framed in terms of "the convention shall apply" when it goes to the meaning of "refugee"; the protocol says

that it is not a matter of application but a

matter of meaning. The protocol at page 44 of

the appeal book speaks in terms of the meaning

of the expression, in article 1(2):

For the purpose of the present

Protocol, the term "refugee" shall -

and then there is an exception -

mean any person within the definition of

article 1 of the Convention

and then the protocol goes on to exclude the

qualifying words which are set out .

MASON CJ:  But there is very little difference between

that and what appears in article lA of the

convention:

The term "refugee" shall apply to any person -

MR DWYER:  There is not a great deal of difference, I would

acknowledge, Your Honour, but my learned friend

has constructed an article which, in a sense, is

C2T62 /1 /ND	106	6/4/89
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all about somebody applying the conven~ion to

refugees. That is really the whole of his

argument about how one approaches the convention

is in terms of an authority applying the

convention to a refugee and the protocol, because

it uses the word "mean" rather than "apply",

is support for the approach which we have urged

on the Court, that if one is, as a matter of

fact, a refugee then one is a refugee whether

some authority has determined that one is or

not and whether or not some authority has applied

the convention or the protocol to one.

(Continued on page 108)

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MR DWYER (continuing): It is submitted as to the references

to MAYER's case and SIMSEK's case to which my
learned friend took the Court that in truth

all of those references are consistent with either

approach, that is, none of the passages to which

my learned friend referred requires as a matter
of logic that either his approach or our approach

to the convention be accepted. Indeed, once my

learned friend, even in the qualified way that he

did, accepts that the convention or that the task

of determining whether someone is a refugee is

declaratory rather than constitutive, then really

that is the key move as a matter of logic in

terms of the argument which we have addressed to
the Court.

It is perhaps not necessary for me to say anything more, save as to this: it is submitted

that the test in WATER BOARD V MOUSTAKAS simply
does not arise in the circumstances of this
case. This is not a case which was decided

on evidence other than the documents before

His Honour Mr Justice Keely, that is, it is

not a case where some opportunity was not

availed of to call a witness or something of

that kind. It is submitted that the point about

delegation which we have raised ought be regarded

by the Court as being open.

Unless there is anything else that the

Court would desire me to say, that is all that

I wish to say to the Court.

MASON CJ:  Thank you, Mr Dwyer.

MR DWYER: If the Court pleases.

MASON CJ:	The Court will consider its decision.
AT 4.03 PM THE MATTER WAS ADJOURNED SINE DIE

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