Minister of Immigration & Ethnic Affairs, v Chan, Y.K.

Re: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
And: CHAN YEE KIN; SOO CHENG LEE and KELLY KAR CHUN CHAN (an infant, by his
next friend and mother Soo Cheng Lee)
Nos. V G487 and 488 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Jenkinson(1) and Neaves(1) JJ.

CATCHWORDS

Administrative Law - Judicial review - Immigration - Decisions refusing temporary and permanent resident entry permits and ordering deportation - Applicant entered Australia on visitor's visa for three months - Failure to depart at expiration of period - Whether decisions based on finding that applicant was not a bona fide visitor at the time of entry to Australia.

Administrative Law - Judicial review - Immigration - Decision refusing refugee status - Whether an exercise of power so unreasonable that no reasonable person could have so exercised it.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1)(a), 5(1)(e), 5(2)(a), 5(2)(g)

Migration Act 1958 (Cth)

HEARING

MELBOURNE

#DATE 18:7:1988

Counsel for the appellant: Mr R.R. Tracey

Solicitors for the appellant: Australian Government Solicitor

Counsel for the respondents: Mr B.A. Keon-Cohen

Solicitor for the respondents: Mr J.K. Ketelhohn

ORDER

The appeal be allowed.

The judgment given on 4 December 1987 be set aside and in lieu thereof it be ordered that the application be dismissed with costs.

The respondents pay to the appellant his costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The Court has before it appeals from two judgments given by a single judge of the Court upon applications made under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). The appeals were, by consent, heard together.

The first appeal (No. V G 487 of 1987) is from a judgment given on 4 December 1987 whereby decisions made by the Minister of State for Immigration and Ethnic Affairs ("the appellant") on 20 April 1986 under the Migration Act 1958 (Cth) ("the Migration Act") were set aside. By those decisions the appellant refused to grant temporary entry permits and permanent resident entry permits to the first and second respondents, Chan Yee Kin ("Mr Chan") and Soo Cheng Lee ("Ms Lee"), and ordered their deportation from Australia. The applications for temporary and permanent resident entry permits were remitted to the appellant for further consideration.
The second appeal (No. V G 488 of 1987), which is between the same parties, is from a judgment, also given on 4 December 1987, whereby a decision made by a delegate of the appellant on 21 August 1986 that Mr Chan not be granted refugee status was set aside and the application for such status remitted to the appellant for further consideration.
Mr Chan was born on 23 May 1951 in The People's Republic of China and is a citizen of that country. He left China in November 1974 when he was 23 years of age and went to Macao. Later he went to Hong Kong. He entered Australia as a stowaway in November 1980. From that time until the coming into operation on 2 April 1984 of the Migration Amendment Act 1983 (Cth), he was a prohibited immigrant. At all times since that date, he has been, and is, a prohibited non-citizen. On 29 November 1982 he applied for refugee status, an application that was unsuccessful.
Ms Lee is a citizen of Malaysia. She entered Australia as a visitor on 15 April 1984 and was granted a temporary entry permit authorizing her stay in Australia for three months. No further entry permit has been granted to her and she is, therefore, a prohibited non-citizen.
In the middle of 1984, Mr Chan and Ms Lee entered into a de facto relationship. On 25 April 1985 a child was born in Australia of that relationship. That child, Kelly Kar Chun Chan, is the third respondent to each appeal.
On 25 February 1985, Mr Chan had lodged an application for the grant of an entry permit permitting an indefinite stay in Australia. On or about 24 June 1985, Ms Lee applied for the grant of a further temporary entry permit. On 21 January 1986, both Mr Chan and Ms Lee applied for a change of status to that of permanent resident on compassionate and humanitarian grounds. Those applications were all refused on 20 April 1986 and the deportation from Australia of Mr Chan and Ms Lee was ordered.
Mr Chan's application for refugee status was reconsidered during 1985 and on 16 October in that year a delegate of the appellant determined that he did not have the status of a refugee. Subsequently, Mr Chan's application for refugee status was again reviewed. The decision thereon, by another delegate of the appellant, was again unfavourable, the further decision to refuse refugee status being made on 21 August 1986.

Appeal No. V G 487 of 1987
This appeal is concerned with the decisions made by the appellant on 20 April 1986. Those decisions were based upon a lengthy submission in writing dated 17 April 1986 (including the annexures thereto) made to the appellant by a Mr W.C. Perram, an officer of the Department of Immigration and Ethnic Affairs. That submission was in three parts, Parts A, B and C, headed respectively "Findings on Material Questions of Fact", "Evidence or other material upon which the findings are based" and "Assessment". In making the decisions under review, the appellant adopted the findings at Part A of the submission as his findings on material questions of fact, accepted those findings of fact on the evidence set out at Part B of the submission and adopted the reasoning set out in the assessment at Part C.
A large number of grounds was relied upon by the respondents in support of the application for orders of review in respect of the decisions taken on 20 April 1986. The learned primary judge rejected most of those grounds and the correctness of his decision in relation to those grounds was not agitated on the hearing of the appeal.
His Honour granted the relief sought by the respondents on two separate, but related, grounds. His Honour construed Mr Perram's submission (par.40) as evidencing, on the one hand, a finding that "Ms Lee was not a bona fide visitor at the time she came to Australia" and, on the other, an assessment on his part that the appellant could, on that ground alone, decide to refuse her application for a temporary entry permit. His Honour went on to say that, in his opinion, the appellant, by adopting the reasoning in that part of Mr Perram's submission, had decided to refuse Ms Lee's application for a temporary entry permit because he had reached the conclusion that she had not been a bona fide visitor at the time she came to Australia.
His Honour concluded that, by reason of the circumstance that Ms Lee was afforded no opportunity to deal with the suggestion that she was not a bona fide visitor at the time she entered Australia, a breach of the rules of natural justice had occurred in connection with the making of the decisions which affected her (Judicial Review Act, s.5(1)(a)). His Honour further concluded that there was no material before the decision-maker to support a finding that Ms Lee was not a bona fide visitor at the time she came to Australia and that, in having regard to that matter, the appellant had taken an irrelevant consideration into account in the exercise of his powers under the Migration Act with the consequence that the making of the decisions in relation to Ms Lee amounted to an improper exercise of those powers (Judicial Review Act, ss.5(1)(e) and 5(2)(a)). The decisions concerning Ms Lee were, consequently, set aside.
The same consideration, namely that Ms Lee was not a bona fide visitor at the time she came to Australia, had, in his Honour's view, also been taken into account by the appellant in reaching his decisions concerning Mr Chan. Thus, those decisions were, in his Honour's opinion, also tainted and were, in consequence, set aside.
There was no oral evidence before the primary judge so that the conclusions which he reached were based solely upon a consideration of Mr Perram's written submission and the appellant's adoption of what was contained in it. The submission is, as has already been mentioned, a lengthy document. It deals comprehensively with the issues that arose for consideration upon the various applications which had been made by Mr Chan and Ms Lee and with the question whether their deportation from Australia should be ordered.
Part C of the submission (pars 34-51) sets out Mr Perram's assessment of the situation. He refers to Ms Lee being a prohibited non-citizen by reason of the fact that she is not the holder of an entry permit (par.35) and to her having committed an offence against the Migration Act in becoming a prohibited non-citizen (par.36). He then deals specifically, in pars 39 and 40, with the question whether temporary entry permits should be granted to Mr Chan and Ms Lee. Those paragraphs read:

"39. It is possible to authorize their temporary stay in Australia by the grant to them of temporary entry permits (in Mr Chan's case, subject to revocation of the existing deportation order). However, it is considered that such a grant is inappropriate. In Mr Chan's case, you may decide to refuse his application for a further temporary entry permit because of his method of entry as a stowaway, without any form of overseas pre-clearance, and in blatant circumvention of migration controls, and because he has remained in Australia in breach of migration law and policy and has engaged in employment without permission. Mr Chan has given no indication since the rejection of his application for refugee status that he would be prepared to depart at a later date even if permitted further temporary stay, or that he would leave voluntarily to apply to migrate in the future in the correct manner.

40. Ms Lee signed undertakings overseas that she would not seek permission to settle in Australia, would not seek employment and would depart at the end of her authorized period of stay. She has already remained in Australia far in excess of the maximum period normally allowed to visitors and she has made it clear that she would hope to remain permanently. I would submit that there are sufficient grounds to reasonably conclude that Ms Lee is not a bona fide visitor to Australia and you may decide to refuse her application for a further temporary entry permit."

The question for consideration, as the primary judge recognised, is not whether Mr Perram was of opinion that Ms Lee was not a bona fide visitor at the time she came to Australia, but whether it is proper to conclude that the appellant read the relevant part of par.40 of the submission as expressing such an opinion and, if he did so, whether, by adopting the reasoning set out in the assessment at Part C of the submission, the appellant is to be taken to have made a positive finding to that effect and to have relied upon that finding in reaching his decision to refuse entry permits and order deportation.
In our opinion, a number of considerations militate against giving an affirmative answer to each of those questions. It is to be noted that the relevant sentence in par.40 of the submission is expressed in the present tense. That sentence follows a reference to the undertakings given by Ms Lee when seeking a visitor's visa to enter Australia and a reference to events subsequent to the expiration of the temporary entry permit granted to her. At the time of the preparation of the submission, Ms Lee was a person who had entered Australia as a visitor for a limited period and who had remained in Australia without authority for a period of 21 months notwithstanding the understanding she had given to depart at the end of her authorized period of stay. It does not seem to us to be inappropriate to refer to such a person as being, at the date the assessment was made, "not a bona fide visitor to Australia". In other words, so to describe her status is not necessarily to say that she was not a bona fide visitor at the time of her entry into Australia. If the latter had been intended, we are minded to think, having regard to the submission as a whole, that Mr Perram would have used the past tense and would have referred specifically to the time of Ms Lee's entry into Australia.
It is also of significance that, in Part A of the submission setting out the findings on material questions of fact, the circumstances of Ms Lee's entry into Australia are stated in the following passage (par.17):

"Ms Lee Soo Cheng had entered Australia as a visitor on 15 April 1984 and was granted a temporary entry permit to authorize her stay for three months. No further entry permit has been granted to her since and hence she is a prohibited non-citizen."

There is also a reference (par.27) to what Ms Lee had said concerning her entry into Australia during the course of an interview with an officer of the Department of Immigration and Ethnic Affairs on 13 January 1986. It is recorded that, on that occasion, Ms Lee said that, although she had at times used other names, she arrived in Sydney on 15 April 1984 under her correct name of Lee Soo Cheng, that it was her first visit to Australia and that she had not applied for migrant entry from overseas. No other facts concerning the circumstances of Ms Lee's entry into Australia are referred to in that part of the submission, a circumstance which would seem surprising in such a lengthy and comprehensive document if the author was intending to make a finding that Ms Lee did not have the status of a bona fide visitor at the time she came to Australia.

Upon a careful consideration of the whole of the material, we do not think it has been sufficiently demonstrated that the appellant made a finding that Ms Lee was not a bona fide visitor at the time she came to Australia or that he relied on such a finding to support his decision to refuse her application for a temporary entry permit. In those circumstances, we are of opinion that the appellant is entitled to succeed on the appeal in regard not only to the decisions affecting Ms Lee but also those affecting Mr Chan.

Appeal No. V G 488 of 1987
This appeal concerns the decision made on 21 August 1986 by a Mr Dennis James Richardson, a delegate of the appellant, that Mr Chan "does not have the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 .... or the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967". That decision was based on the conclusion reached by Mr Richardson that Mr Chan did not have a well-founded fear of persecution should he be returned to The People's Republic of China. The Convention, as amended by the Protocol, provides, so far as material, that, for the purposes of the Convention, the term "refugee" applies to any person who:

"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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

As was the case in the proceeding which gave rise to Appeal No. V G 487 of 1987, a large number of grounds was relied upon before the primary judge to support the claim that the decision made on 21 August 1986 be set aside. Again, most of the grounds were rejected and are not the subject of consideration on this appeal. The ground on which the decision was set aside was that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that it was an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power (Judicial Review Act, ss.5(1)(e) and 5(2)(g)).
Mr Chan first applied for refugee status on 29 November 1982. He was interviewed in relation to that application by an officer of the Department of Immigration and Ethnic Affairs on 15 December 1982. The application was considered by the Determination of Refugee Status (DORS) Committee on 22 July 1983 and that Committee recommended, unanimously, that Mr Chan not be recognised as a refugee. It appears that Mr Chan was informed by letter dated 28 November 1983 that his application had been unsuccessful. The decision was subsequently reviewed and on 16 October 1985 the then delegate of the appellant, Mr T.L. Griffiths, accepted the Committee's recommendation and determined that Mr Chan was not a refugee. Mr Griffiths set out his findings on material questions of fact, the evidence or the other material on which his findings were based and the reasons for his decision in a document bearing that date.
Subsequently, for reasons into which it is unnecessary to go, it was decided that Mr Chan's application for refugee status should be re-determined. Mr Chan was again interviewed by an officer of the Department of Immigration and Ethnic Affairs, this interview taking place on 28 June 1986. The application was examined by the DORS Committee on 21 August 1986, the Committee, again unanimously, recommending that Mr Chan not be recognised as a refugee. That recommendation was accepted by Mr Richardson in the decision the subject of this appeal.
What Mr Chan said at the interview on 28 June 1986 is summarised in par.4 of the statement of reasons for his decision furnished by Mr Richardson under s.13 of the Judicial Review Act. The summary is as follows:

"(1) after leaving school (in approximately 1965) he joined the Red Guards and initially supported chairman Mao's ideas.

(2) he later however thought Mao's ideas concerning inheritance and his opposition to all 'rich people' were wrong. He became known to be sympathetic with a section opposed to Mao's ideas, and his father's former associations with pre-cultural revolution identities resulted in his family being branded as an 'anti-revolutionary' family.

(3) resulting from this 'branding' members of his family had been asked to reform, but no other action had been taken against them. His father had already left to live in Hong Kong by 1950.

(4) the Section with whom he became associated lost the power struggle and the other faction won the official positions in the hierachy. One of the members of his faction had written an article against Mao, so all of their group were questioned at the police station. The applicant was detained there for two weeks in 1968.

(5) his name was listed in public in the local area as against the policies or ideas of the State. He was then exiled by the local people's committee to another area a great distance away, following their assessment that he was 'anti-revolutionary'.

(6) In the area he was sent he worked in farming and he was free to move around that specific area, but he could neither return to his home village nor travel on available transport anywhere without an appropriate certification from the local officials.

(7) the officials would not agree to 'release' him due to his 'anti-revolutionary' background.

(8) Between 1972 and 1973 he tried to escape on three occasions and received increasing detention periods when caught on each occasion ranging from 3 to 7 months. He was warned that a further escape attempt would yield him at least two years' detention in another area of China.

(9) He escaped to Macau by walking for one week and swimming for three hours and stayed with relatives. He obtained a Macau ID card with the status of temporary resident, organised by his father in Hong Kong. After 3 months he travelled by ship to Hong Kong as a stowaway.

(10) he remained illegally for some years in Hong Kong until he was deported back to Macau (since he still held the ID card although expired) after applying for permanent residence in Hong Kong. In Macau he was imprisoned for 15 days and his ID card was confiscated. His father had organised his release and he immediately returned to Hong Kong and stayed there illegally until he came to Australia.

(11) he does not wish to return to China, but if he has to leave Australia he would rather be returned to China than Hong Kong or Macau. In Hong Kong he feels he would be prosecuted for his false Hong Kong ID Card and then sent back to China anyway. He does not expect any trouble in Macau, but just doesn't wish to return there. This is why he previously stated at interview that he escaped directly to Hong Kong from China and not via Macau.

(12) he would prefer, if it was necessary, to return to Taiwan where he would not be imprisoned as he fears if he returns to China.

(13) however, if the Australia Government had a guarantee that he would not be returned to China, then he would go to Macau.

(14) he does not think that the views of the Government in China would have changed enough for him to avoid punishment for his escape or return.

(15) a letter sent to his family in China in 1983 was returned by his relatives showing it had been opened by the authorities, so he ceased corresponding. His sister in China was also questioned by the police as to his whereabouts in

1983. He now only corresponds via his relatives in Hong Kong.

(16) he wished to claim refugee status on the basis of fear of persecution due to his political opinion."

In reaching the conclusion that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power, the primary judge referred particularly to pars 9, 10 and 12 of the statement of reasons furnished by Mr Richardson pursuant to s.13 of the Judicial Review Act. Those paragraphs read:

"9. 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 considered that this did not amount to persecution within the terms of the Convention.

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 P.R.C., any such attention would not constitute a basis for a well-founded fear of persecution.

....

12. I concluded that the Applicant did not have a well-founded fear of persecution should he be returned to the P.R.C. Accordingly, I determined he was not a refugee within the meaning of the Convention and Protocol."

His Honour continued:

"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 (the DORS Committee). The delegate 'accepted' (paragraph 10) the views of the DORS Committee members that the first named applicant (Mr Chan) may be the subject of some attention in the People's Republic of China for his escape from the area to which he had been 'assigned'; the last word may be compared with the stronger words - 'exiled' and 'internal exile' - which had been used earlier, in paragraph 4 (item (5)) and paragraph 8 respectively. The delegate's statement (in paragraph 10) that the first named applicant 'may be the subject of some attention having escaped from the area' (emphasis added) is difficult to reconcile with the earlier passage (paragraph 4, item (8)) that he had:

'tried to escape on three occasions and received increasing detention periods when caught on each occasion ranging from 3 to 7 months. He was warned that a further escape attempt would yield him at least two years detention...'."

His Honour noted that the delegate had accepted (par.9) that Mr Chan's treatment may have been "due to the apparent perception the local authorities had of his family". He also drew attention to the reference in par.4, item (2) to Mr Chan's father's "former associations with pre-cultural revolution identities" and commented that those words appeared "pallid when compared with what was 'accepted' by Mr T. Griffiths (the Minister's then delegate) in his statement of reasons, dated 16 October 1985". After quoting extracts from Mr Griffiths' statement of reasons, his Honour said:

"In any event, the present delegate accepted that 'his father's former associations .... resulted in his family being branded as an "anti revolutionary" family'."

The words there quoted from Mr Richardson's statement of reasons were also taken from par.4, item (2).

The judgment proceeds:

"As to whether the first named applicant had been 'persecuted', the present delegate accepted that there 'may have been' discrimination to a 'limited degree' but considered that this did 'not amount to persecution' (paragraph 9). That statement may be contrasted with the finding of fact, made by Mr Griffiths, as the Minister's delegate on 16 October 1985, that at an earlier time a DORS Committee had:

'accepted that the Applicant had been persecuted during the Cultural Revolution'."

His Honour accepted that the DORS Committee did not have before it any "detailed advice and information .... concerning the general situation prevailing in China ...." and concluded that, in the absence of such material, "the only significant material before the delegate dealing with the question whether the first named applicant was likely to be persecuted should he be returned to the People's Republic of China was the material supplied by the first named applicant". His Honour then determined that Mr Richardson's conclusion was "manifestly unreasonable".

Thus, in reaching his conclusion, the primary judge placed reliance upon perceived inconsistencies within Mr Richardson's statement of reasons and between that statement and the statement earlier prepared by Mr Griffiths. As to the suggested internal inconsistency in Mr Richardson's statement, a cautionary note must be sounded about drawing any conclusion from differences in language between par.4 and other paragraphs of Mr Richardson's statement. The purpose which par.4 of the statement serves is to summarise the claims which Mr Chan had advanced at the interview with the officer of the Department of Immigration and Ethnic Affairs on 28 June 1986 whereas the purpose of the other paragraphs is to set out Mr Richardson's views. Further, we do not regard it as of particular significance that Mr Richardson, when noting (par.8) the absence of any credible explanation by Mr Chan to support a claim that "his internal exile and periods of detention were related to any political activities on his behalf" uses the expression "internal exile" whereas in par.10 he refers to Mr Chan having been "assigned" to a particular area of The People's Republic of China.
The inconsistency between the respective statements of Mr Richardson and Mr Griffiths arises in relation to the characterisation of the treatment that Mr Chan had received prior to his departure from China in 1974. Mr Griffiths took the view that it amounted to persecution whereas Mr Richardson was not prepared to treat it as answering that description. But, to note the different conclusion which the two decision-makers reached on that question, even assuming they had before them identical material, does not require the conclusion that one or other decision could not reasonably be reached. The question is clearly one of evaluation or judgment on which the minds of reasonable men may differ. Two further comments may be made. First, the ultimate question before the decision-makers was to be judged in terms of the situation prevailing in The People's Republic of China at the time the matter was being considered, not in terms of the situation that obtained there in or prior to 1974. Secondly, the question with which each decision-maker was faced was whether Mr Chan had a well-founded fear that, if he were to return to China, he would be subjected to what may properly be described as persecution of the kind referred to in the Convention as amended by the Protocol. In answering that question there was no disagreement. Both concluded that Mr Chan was not entitled to refugee status.
The circumstances in which the exercise of a discretionary power will be held to have been so unreasonable that no reasonable person could have so exercised the power have been referred to in a number of authorities. The language in which the test is expressed varies but, in essence, they are to the same effect. Thus, it has been said that the decision will be set aside if it cannot be justified on any reasonable ground (Parramatta City Council v. Pestell (1972) 128 CLR 305 per Menzies J. at p 323); if, looked at objectively, it is so devoid of any plausible justification that no reasonable body of persons could have reached it (Bromley London Borough Council v. Greater London Council (1983) AC 768 at p 821); if it is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it (Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374 at p 410).
The question then is whether the decision made by Mr Richardson that Mr Chan was not entitled to refugee status because, in Mr Richardson's judgment, he did not have a well-founded fear of persecution should he be returned to The People's Republic of China was, having regard to the material before him, one that cannot be justified on any reasonable ground. The question is not, as the primary judge acknowledged, whether the Court would, on that material, have reached the same conclusion: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24 per Mason J. at pp 40-41. It may also be noted that there was, in this case, no suggestion that there was material other than that which was before Mr Richardson to which he should have had regard in reaching his decision.
The claim made on Mr Chan's behalf, expressed in the language of the Convention as amended by the Protocol, is that he is outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of political opinion and is, owing to such fear, unwilling to avail himself of the protection of that country. It is submitted that the decision to deny the claim is unreasonable because of four matters. The first is the warning given to him in 1973 that a further departure, without authority, from the region within which he had been required to remain, he having already failed to comply with that requirement on two previous occasions, would "yield him at least two years' detention in another area of China" (see Mr Richardson's statement, par.4, item (8)). The second is an apprehension that he might receive an additional period of detention for having, in 1974, departed from The People's Republic of China without permission. The third is his family background, particularly the circumstance that his father "was a member of the Kuomintang and had served in the Nationalist air force" and had "fled to Hong Kong in 1950 following the communist takeover", this statement being recorded by Mr Griffiths as having been made by Mr Chan at the interview on 15 December 1982. The fourth is that in 1983 the authorities in The People's Republic intercepted and opened a letter which he had written to a member of his family in that country.
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 of 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 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. Another significant matter is that Mr Chan gave no indication that his political beliefs are contrary to those of the present regime in The People's Republic of China. Indeed, he did not articulate any political issue upon which he differed from the authorities now in power there and he disavowed any involvement, while in Australia, in any activities which that regime might regard as antagonistic to it or to its interests. 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.
Taking all these matters into consideration, we are of opinion that it cannot be said that the decision at which Mr Richardson arrived on the material before him is a decision that cannot be justified on any reasonable basis or a decision so devoid of any plausible justification that no reasonable person could have reached it. It follows that, in our opinion, the challenge to the legality of his decision must fail.

Orders
For the reasons set out above, we make the following orders:

A. Appeal No. V G 487 of 1987 -

1. The appeal be allowed.

2. The judgment given on 4 December 1987 be set aside and in lieu thereof it be ordered that the application be dismissed with costs.

3. The respondents pay to the appellant his costs of the appeal.

B. Appeal No. V G 488 of 1987 -

1. The appeal be allowed.

2. The judgment given on 4 December 1987 be set aside and in lieu thereof it be ordered that the application be dismissed with costs.

3. The respondents pay to the appellant his costs of the appeal.

[1988] FCA 373

18 JULY 1988