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Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (27 May 1996)

CATCHWORDS

Administrative Law - Judicial review - Decisions as to 'refugee status' - Proper role of reviewing court.

Migration Act 1958 (Cth), s 22AA.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(f). 27:5:1996

ORDER

1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court entered 14

DECISION

"If the Minister is satisfied that a person is a refugee, the

"... owing to well-founded fear of being persecuted for reasons of

2. Before further consideration of the issues on the present appeal, it is appropriate to distinguish the legislative regime which gave rise to the leading authority in this Court upon refugee status. That case is Chan v Minister for Immigration and Ethnic Affairs (4). There the administrative decision upon refugee status had been made upon application by the appellant for an entry permit pursuant to what was then s 6A(1)(c) of the Act. This stated that an entry permit was not to be granted to a non-citizen after entry into Australia unless, inter alia, the applicant fulfilled the condition that he be the holder of a temporary entry permit and:

"the Minister has determined, by instrument in writing, that he has

3. Chan established two propositions as to the steps by which refugee status was to be "determined" under s 6A(1)(c) of the Act (5). First, the definition of refugee involved a mixed subjective and objective test. Second, the definition would be satisfied if an applicant could show genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason (6).

4. The correctness of these propositions has not been disputed on the present appeal. However, issue has been joined as to the standard of judicial review which is appropriate under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") to ensure that the correct test is applied by administrative decision-makers. In summary, the situation is one where written reasons supplied by a delegate of the Minister for refusal of refugee status explicitly adopt and expressly repeat the correct test for application of the statutory criteria, yet the Full Court found, and treated as decisive, indications that in truth the test had not been applied. The Full Court also developed what appears to be a false line of authority as to the proper scope of judicial review in such cases.

5. In this context the major changes to the legislative and regulatory scheme between Chan and the decisions giving rise to the present appeal take on a special significance. Rather than a raw "determination" of refugee status under the old s 6A(1)(c), s 22AA required that the Minister be "satisfied" of refugee status before a determination was made. The significance of this change in the respective roles of the Minister and a court reviewing a Minister's decision will be examined later. It is enough to indicate here that a decision which determines that "refugee status" exists differs in nature and quality from one recording the satisfaction of the decision-maker that this is the case. The significance of the change in the legislative scheme since Chan appears to have been insufficiently appreciated by the Full Court.

6. We turn now to outline the facts and proceedings in this matter. It is only from this lengthy narration that the issues on the appeal may adequately be identified and assessed.

The facts
7. The three respondents are Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang. The respondents are nationals of the People's Republic of China ("PRC"). They were part of a group of 68 people who left Guangxi Province in Southern China by boat, subsequently codenamed Labrador by Australian officials, on or about 27 July 1992. The respondents arrived at Christmas Island on 23 August 1992. On 25 August 1992, the respondents were flown to Port Hedland, Western Australia. They were detained and interviewed by officers of the (then) Department of Immigration, Local Government and Ethnic Affairs ("the Department"). The respondents, along with the rest of the group, indicated that they wished to claim refugee status and to remain in Australia.

8. The standard application form for refugee status simply stated that, having had the definition of "refugee" as contained in the relevant international instruments read to the applicant, the applicant "believe(s) that the definition applies to me" and that the applicant "now therefore (applies) for recognition as a refugee". Such application was received by the Department from the first and second respondents on 6 September 1992, and from the third respondent on 16 September 1992.

9. By making these applications the respondents each sought a determination of refugee status by the Minister under s 22AA of the Act. The respondents were provided with legal assistance by Australian Lawyers for Refugees Inc. After detailed oral interviews were conducted and a period for further submissions had passed, primary decisions were made concerning refugee status. These decisions were reached by officers who, according to a finding of Wilcox J, "had been appointed as delegates of the Minister for the purpose of determining claims for recognition as a refugee" (7). Only three of the 68 applicants were recognised as refugees. The three present respondents were all refused refugee status.

10. The respondents filed applications for review of those primary decisions on or about 12 October 1992. These applications were considered by the Refugee Status Review Committee ("RSRC"). Between July 1991 and June 1993, a refugee status claimant rejected at the primary stage could request review by the RSRC. The RSRC consisted of representatives of the Department, the Refugee Council of Australia, the Department of Foreign Affairs and Trade and the Attorney-General's Department (8). The RSRC ceased to operate on 1 July 1993 (9). The RSRC recommended that each respondent be refused refugee status. Further decisions were then made by different delegates of the Minister. Once again these delegates were described by Wilcox J as "delegates of the Minister in connection with applications by Mr Wu and the group members for recognition as refugees" (10). Each delegate described himself or herself at the end of their decisions as a "(d)elegate of the Minister for the purposes of Section 22AA of the Migration Act 1958". Each respondent was refused refugee status on 16 June 1993. It is these decisions, made at a "secondary" level, by way of internal review, with which the present appeal is concerned.

Proceedings in the Federal Court
11. On 16 July 1993, the solicitors for the first respondent filed application NG501 of 1993 which named the first respondent as representative party and the remaining unsuccessful applicants for refugee status, including the second and third respondents, as group members. The application sought an order of review of the adverse secondary decisions made by the various delegates of the Minister. It was a representative proceeding brought pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth). Reliance was placed upon various grounds for review. They included denial of natural justice, failure to take into account relevant considerations, taking into account irrelevant considerations, unreasonableness and error of law.

12. Wilcox J dismissed the application for an order of review by orders made on 17 June 1994.

13. The present respondents appealed from the orders of Wilcox J. At the hearing of the appeal to the Full Court of the Federal Court, the present respondents eschewed all but two grounds of review. The Full Court decided the case on one of those grounds and it is that ground which remains relevant before this Court. It was that Wilcox J "erred in failing to hold that the delegates erred in requiring the (respondents) to establish a well-founded fear of persecution beyond reasonable doubt or on the balance of probabilities". This failure was said by the respondents to constitute an error of law for the purposes of s 5(1)(f) of the ADJR Act.

14. The Full Court gave reasons on 23 June 1995 and its orders were entered on 14 August 1995. The Full Court upheld the appeal and set aside the orders of Wilcox J so far as they concerned the present respondents. It is apparent that operative orders were made in relation only to those parties. This was because the Full Court considered that an indication of reasons in relation to three of the 18 cases involved in the representative action "should give the parties sufficient guidance to make it likely that they will agree on the outcome of the other 15" (11). In each case, the Full Court ordered that the applications for review of the adverse primary decisions be remitted to the Refugee Review Tribunal ("the Tribunal") for consideration.

15. On 15 December 1995, this Court granted special leave to appeal from the whole of the judgment and orders of the Full Court "in relation to the First, Second, and Third Respondents".

Reasons of the delegates
16. A different delegate rejected the claims of each respondent in separate reasons for decision. Each set of reasons followed a broadly similar form. This was, at least partly, due to the practice of addressing common claims with "standard paragraphs" which had been prepared for the use of delegates. This practice was the subject of extensive argument before Wilcox J. His Honour rejected submissions that the use of such standard paragraphs indicated that the delegates "failed to give proper, genuine and realistic consideration to the merits of each application". Wilcox J's conclusion on this point was not the subject of consideration by the Full Court and the matter was not pressed in this Court. A statement of reasons for a decision reviewable under the ADJR Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision-maker. As the significance of the formulae employed by the respective delegates of the Minister in making their decisions in the present cases was not canvassed before us, we say no more about it.

17. Each set of reasons may be divided into six sections. The reasons begin with a section headed "BACKGROUND" which summarises the personal particulars and arrival details of the applicant. Second is a section listing the relevant dates in the "PROCESSING HISTORY" of each application. Third is a "SUMMARY OF CLAIMS/SUBMISSIONS". This section outlines in some detail the material upon which each applicant relied to support various claims (12). Fourth was a section headed "ASSESSMENT", which is further divided into sub-sections. The reasons were concluded by a fifth section in which the "DECISION" of the delegate was stated and the sixth section where the "MATERIAL" before the delegate was annexed.

18. None of the respondents made a claim on the grounds of race, religion or nationality. Only the first respondent made a claim on the basis of his membership of a "particular social group". This claim was supported on two bases: membership of a "counter-revolutionary" family and membership of a "poor and disadvantaged" class in the PRC. This claim was rejected by the delegate.

19. All three respondents made claims based upon imputed political opinion. In total, three bases of fear of persecution related to imputed political opinion were raised.
(1) All three respondents raised matters relating to their departure from the PRC and activities since departure.
(2) The first and second respondents raised matters related to the treatment of family members during the Cultural Revolution.
(3) The third respondent raised matters relating to his opposition to corruption. It is in relation to the assessment of the claims relating to imputed political opinion based on the first ground, namely departure and activities since departure, that the Full Court found reviewable error. The respondents claimed that they would be persecuted if returned to the PRC by reason of their illegal departure from the PRC, their application for refugee status in Australia, and the embarrassment caused to the PRC by the group, their activities and the media coverage that they had attracted. Such claims are based on a recognition that the very act of leaving a country and staying abroad may be seen as a political act (13). Much depends on the circumstances of each case.

20. It is necessary to consider in more detail the assessment by the delegates of the claim related to imputed political opinion based on departure and activities since departure. The assessment by the delegate in the first respondent's case provides the starting point.

21. After summarising the claim, the delegate said:

"(2) I accept that it is likely that the (first respondent) will be

"(4) I find case studies of returned illegal departees eg the

"(7) Of all the cases outlined above, the departure and activities

(8) I find that the treatment of the returnees from the 'Jeremiah'

(9) Submissions have been made in relation to the applicable PRC

"(12) THEREFORE, I find that there is not a real chance that the

22. In the preceding passages the verbal formulations by which the Full Court was persuaded that the delegate in fact did not apply the correct test have been emphasised. These formulations were, it seems, part of standard paragraphs. As such, they were used in assessing not only the claim of the first respondent, but also those of the second and third respondents.

23. It is convenient to point out that the assessments by the delegates of the claims of the second and third respondents contain some relevant passages which do not appear in the assessment by the delegate of the claim of the first respondent. Reference was made to an affidavit of one Lin Ping, a Department of Foreign Affairs and Trade cable, a statutory declaration from a confidential source, and reports of comments by the Red Cross in relation to the treatment of previous returnees. In relation to this material, the delegates assessing the claims of the second and third respondents each noted:

"(T)he comments in the Lin Ping affidavit regarding the fate of the

24. An extended standard paragraph was used by the delegates in relation to the second and third respondents which, it seems, the delegate assessing the claim of the first respondent considered unnecessary. Paragraph (8) of that delegate's reasons has already been reproduced. The delegates in the other matters each had an extended version which expressed the same conclusion, but added:

"This conclusion is based on a careful examination of the evidence

Decision of the Full Court
25. The arguments of the three respondents in the Full Court focused upon the words we have emphasised in the reasons provided by each delegate. The Full Court gave the most extensive consideration to the reasons of the delegate in relation to the first respondent. It recognised that (14):

"(T)he delegate correctly directed herself as to the test which she

"The reasons for decision must, of course, be read as a whole, but

"Having reflected on the matter, we have reached the conclusion

26. Here the delegate has put speculation aside so one does not know what view she would have had if she had been prepared to engage in it. Then there is the use of the expressions 'give more weight to' and 'give greater weight to' in pars (4) and (7). As was the case in Mok (18), the delegate appears to have been engaged in an exercise which involved acceptance or rejection of the available material. It is true that the language she has used, expressed as it is in comparative terms, may be capable of a meaning whereby the two opposing pieces of evidence are left in play, but one was thought to have more weight than the other. However, even if that be so, the problem is to know the place in the decision given the material which had the lesser weight. Paragraph (8) contained a positive finding about the position of those who had been on board the 'Jeremiah' and par (9) is the paragraph in which the delegate eschews speculation. Notwithstanding what is said in par (12), we think that it must be concluded that the delegate did not in fact apply the correct test. She did not turn her mind to what it involved. As in Mok the reality of what she did seems to have been to approach the matter as if it involved the establishment of a state of affairs as being more probable than not. That is contrary to the test propounded in Chan."

27. A similar conclusion flowed from the same wording in the reasons provided by delegates in relation to the second and third respondents. In relation to the third respondent, the Full Court noted the use in the extended standard paragraph of the word "speculation" (19):

"A consideration of the terms in which par 6.6.6 is expressed bears

28. We turn now to consider the Full Court's conclusion that a true analysis of each delegate's reasons showed that the Chan test had somehow miscarried or had not been applied. The words used by the delegate must be analysed to establish what they say as to the thought process in fact applied by the delegate to the determination of refugee status. This endeavour is assisted by the recognition of two important matters. First, that in such a case the proper role of a court upon administrative review is limited. Secondly, that the nature of the decision entrusted to the delegate is not a "determination" but, rather, "satisfaction". We turn now to consider the first matter.

The proper role of a reviewing court
29. The Full Court recognised, on the face of the delegate's assessment of the first respondent's claim, "that the delegate correctly directed herself as to the test which she had to apply" (20). Later in its reasons the Full Court noted (21):

"Undoubtedly the delegate considered Mr Wu to have a genuine fear

30. When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24):

"The reasons for the decision under review are not to be construed

31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (26):

"The duty and jurisdiction of the court to review administrative

Nature of the decision under the Act
32. Minister for Immigration, Local Government and Ethnic Affairs v Mok was the starting point of a line of authority of which the present case is a part and was relied upon by the Full Court. In Mok, Sheppard J said (27):

"In relation to Chan, it should first be mentioned that the Act

33. In Chan, as we have outlined, the decision of the delegate was made upon an application for an entry permit pursuant to s 6A of the Act. A grant was not to be made unless, inter alia, "the Minister has determined, by instrument in writing, that (the applicant) has the status of refugee within the meaning of the Convention". The power to make a "determination" was not separately provided by the Act, and it had required the majority decision of this Court in Minister for Immigration and Ethnic Affairs v Mayer to clarify that (28):

"the preferable construction of s 6A(1)(c) is that it impliedly

34. The power to make a determination as to refugee status that had been conferred by s 6A became, by amendment (31), a power to make such a determination under s 47(1)(d) of the Act. This section provided that:

"A permanent entry permit shall not be granted to a non-citizen

...

(d) he or she is the holder of a valid temporary entry permit and

(i) the Convention relating to the Status of Refugees that was done

(ii) the Protocol relating to the Status of Refugees that was done

35. It appears that the insertion of s 22AA by s 8 of the Migration Amendment Act was the first time that the power of the Minister to make a refugee status determination was expressly provided by the Act. In so providing, the nature of the "decision" to be made was changed. The words chosen by the legislature express that "the Minister may determine" that a person is a refugee "(i)f the Minister is satisfied that a person is a refugee" (emphasis added). The Explanatory Memorandum noted the effect of the amendment in stark terms:

"This section empowers the Minister to determine that a person is a

36. It will be seen that, in contrast to the previous position, the Minister's power to make a refugee status determination was now expressly conditioned upon the Minister being "satisfied" that a person was a refugee as defined. It does not follow that a decision-maker so satisfied then has a further discretion whether or not to "determine" refugee status. The word "may" is used here to confer power and not to give discretion (33).

37. The grafting of what might be seen as the Chan test onto the new statutory power to make refugee status determinations reveals the true nature of the Minister's decision-making function in the present case. This is, that if the Minister is satisfied that a person has a genuine fear founded upon a real risk of persecution, then the Minister may determine in writing that the person is a refugee. A condition of determination is the Minister's satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. This is the "decision" for which provision is made by the Act (34). The question on review becomes whether that decision "involved an error of law" for the purposes of s 5(1)(f) of the ADJR Act.

38. It is no longer the case that a decision as to "satisfaction" is unreviewable. It used to be so. In Ex parte Walsh and Johnson; In re Yates (35), Knox CJ said:

"When the operation of a law is made conditional upon the opinion,

"His decision, it is true, is not unexaminable. If he does not

This statement of principle has been applied in numerous cases (39). The judgment of Gibbs J in Buck v Bavone (40) accurately reflects the position prior to the enactment of the ADJR Act. His Honour said:

"It is not uncommon for statutes to provide that a board or other

39. The present appeal, of course, is not one which relies upon the common law. Rather, it is an application under the ADJR Act for an order of review in respect of a decision of an administrative character made under an enactment. Paragraph (f) of s 5(1) of the ADJR Act asks of the present situation whether the Minister's failure to attain the requisite state of satisfaction was vitiated because it "involved an error of law". However, while the subjective nature of the decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law.

40. In the present case, the decision as to lack of satisfaction was made not by the Minister, but rather by delegates of the Minister. No instrument of delegation appeared to be in evidence before the Federal Court. However, as outlined earlier in these reasons, the delegates were described by Wilcox J as "delegates of the Minister in connection with applications by Mr Wu and the group members for recognition as refugees" (41). In addition, each delegate described himself or herself at the end of their decisions as a "(d)elegate of the Minister for the purpose of Section 22AA of the Migration Act 1958". Section 34A of the Acts Interpretation Act 1901 (Cth) helps to clarify the situation. It provides:

"Where, under any Act, the exercise of a power or function by a

41. We turn now to consider the specific phrases which form the basis of the Full Court's conclusion that the correct test was not, in fact, applied in reaching the relevant decisions.

"Speculative"
42. The use by the delegates of the phrase "I consider it speculative ... to suggest that (the respondents) would be treated more harshly than in the known relevant cases" was taken by the Full Court to indicate that the Chan test miscarried. This conclusion was reached by, first, characterising the phrase in a particular way and, then, demonstrating that the phrase so characterised indicated an approach inconsistent with the Chan test. The Full Court found that the phrase "seems to suggest that speculation ought not be engaged in" (42). It interpreted "speculation" as used by the delegates to encompass prediction of the future. From this it followed that the Chan test must have miscarried because it is clear that the test in Chan necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation "real chance".

43. If the Full Court was right in its characterisation of the delegates' reasons, then that would certainly demonstrate an incorrect approach. However, with respect, the Full Court was in error when it so characterised the delegates' reasons. The word "speculative" in the context in which it appears need not amount to a denial of the delegates' function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate. An example of such a use of the word "speculative" is provided in a judgment by a majority of this Court in Malec v J C Hutton Pty Ltd (43). In the context of discussing the assessment of damages for future events, Deane, Gaudron and McHugh JJ said:

"The probability may be very high - 99.9 per cent - or very low -

"Give more/greater weight to" and the Mok line of authority
44. The conclusion of the Full Court was based upon the reasoning that the use of phrases such as "give greater weight to", when referring to material before the delegates, indicated that the delegates had applied a balance of probabilities test instead of the correct "real chance" test to the assessment of risk of persecution.

45. It is appropriate to advert to other decisions of the Federal Court where reliance has been placed on a similar line of reasoning. For present purposes, the most important of these cases is Mok (44). The Full Court in the present case noted (45):

"The court in Mok regarded the phrase 'I gave greater weight to

46. In Mok, an appeal was dismissed from a decision of a judge of the Federal Court which had quashed a decision by a delegate of the Minister for Immigration refusing refugee status. The leading judgment was given by Sheppard J. On matters relevant to the present appeal, his Honour's judgment was agreed to by Black CJ (46) and Lockhart J (47). The reasons of the delegate refusing refugee status disclosed language very similar to that impugned in the present case. Sheppard J said (48):

"It seems to me that there are signs that he approached the matter

"I find it difficult to accommodate the use of the expression 'I

"(i)t was a factor still to be taken into account not as a

47. One other case should be mentioned, where reliance has been placed upon that reasoning in Mok which was relied on by the Full Court in the present case. It is a decision of the Full Court of the Federal Court (Northrop, Spender and Lee JJ) in Chen v Minister for Immigration and Ethnic Affairs (52). The Full Court allowed an appeal from a decision of a judge of the Federal Court dismissing an application under the ADJR Act for an order to review a decision of the Tribunal. The issue raised on the appeal was whether the Tribunal erred in finding that Chen did not have a well-founded fear of being persecuted for reasons of political opinion. The Tribunal had expressed the following conclusion (53):

"Looking at the applicant's claims overall, I am unable to find

"(T)he task of the Minister, or the Tribunal, is not to weigh the

48. It appears that, starting with Mok, a line of authority has developed in the Federal Court (56) which equates the attribution of weight to particular material before a delegate with a renunciation of the "real chance" criterion and as an adoption of the "balance of probabilities" criterion. Such phraseology is said to indicate that the delegate is in fact assessing whether persecution is more likely than not.

49. With respect, at least in so far as the present case is concerned, we find it difficult to understand why a statement ascribing weight to material concerning the treatment of PRC nationals previously returned in similar circumstances necessarily indicates that the delegate is assessing the risk of persecution upon the balance of probabilities.

50. Too long a leap is required to conclude that the delegates were, in fact, applying a balance of probabilities criterion when the proper role of a reviewing court is taken into account. This is so for several reasons. First, the correct criterion appears at least twice within each set of reasons. Second, the term "balance of probabilities" nowhere appears within the reasons. Third, the inference which was drawn from the use of the term "give greater weight to" is not valid. The Full Court held that the use of such a term indicated that material favourable to the applicants for refugee status was rejected. In our opinion, any inference to be drawn from the use of such a term is to the contrary. Greater weight is a relative term and, as such, admits of lesser weight. Giving greater weight to one matter indicates that less weight is being given to another. Lesser weight is not the equivalent of rejection. Fourth, the attribution of weight to material going towards a determination of refugee status is mandated in the very case from which the test applied by the delegates was derived. In Chan, Gaudron J said (57):

"Perhaps all that can usefully be said is that a decision-maker

51. The delegates have embarked upon a process whereby the different material before them is evaluated and some material is given a greater weight. After this process, the delegates have gone on to say that there is not a real chance that each respondent would be persecuted if returned to the PRC. The delegates should be taken to mean what they have said and a proper construction of the reasons does not disclose any surreptitious adoption of a balance of probabilities test. When conflicting information available to the Minister's delegate relates to some past event - in this case, the treatment that had been accorded to previous returnees to the PRC - the attribution of greater weight to one piece of information as against another or an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test. The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event. There is no reason to assume that the delegates of the Minister engage in some artificial and fallacious manner of reasoning when they are assessing the chance that an applicant for refugee status may suffer the persecution he or she fears.

52. When it is remembered that the decisions for the delegates involved a question of "satisfaction" as to refugee status, the term "give greater weight to" appears even more innocuous. When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight. In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached. For instance, the delegates looked at material which showed examples of the punishment of persons who had returned to the PRC. These "case examples provided by (the respondents) of illegal departees arrested on return" were put alongside other material relating to the treatment of recent returnees whose departure and activities since departure were "very similar" to those of the respondents. More "weight" was given to those closely analogous situations. In other words, the material provided by the respondents did not go very far towards satisfying the delegate that there was a real chance of persecution, because it was contradicted by more relevant material.

The nature of the decision-making process
53. We should mention one further matter. Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation.

54. Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature (58). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.

55. In Fernandez v Government of Singapore (59), the House of Lords considered the test to be applied to determine if a fugitive offender "might, if returned, be prejudiced at his trial". This raised a similar issue to the assessment of a real chance of persecution. Lord Diplock said (60):

"I think it only leads to confusion to speak of 'balance of

Conclusion
56. There were two grounds of appeal before the Full Court. That ground relating to error of law in the misapplication of the "real chance" test was sufficient to determine the appeal. The Full Court did not decide the second argument advanced by the respondents that the delegates had failed to give them a reasonable opportunity to comment on a draft of each delegate's decision as envisaged by ministerial guideline. This complaint was linked to the "real chance" submission in that the basis of reviewable error was identified by the respondents as the loss of an opportunity to point out to the delegates that the wrong test was being applied. As such, it was submitted by the appellant, and not controverted by the respondents in this Court that, if the appeal were to be allowed, there was no necessity for this Court to remit the matter to the Federal Court.

57. The appeal should be allowed with costs. The orders of the Full Court of the Federal Court allowing the appeal to the Full Court by the respondents should be set aside. In lieu thereof, it should be ordered that the appeal to that Court by those respondents be dismissed with costs.

KIRBY J. This appeal concerns a challenge to the approach taken by the Federal Court of Australia to the exercise of its statutory function of judicial review of administrative decisions on claims to refugee status.

2. The Minister for Immigration and Ethnic Affairs (the appellant) contends that the Full Court of the Federal Court of Australia exceeded its proper role in performing the review by a process of scrutiny of the reasons of the primary decision-maker inappropriate to the ascertainment of a suggested error of law in the decision. As a consequence, the Minister contends that the Federal Court erred in finding errors in the reasons given for the administrative decisions affecting the respondents before the Court, Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang.

Course of the proceedings
3. In order to deal with the essentially narrow point argued in the appeal, it is unnecessary to recount in detail the facts of the cases before the Court or the procedural complications which attended the passage of the litigation through the Federal Court. Those details are to be found in the opinion of Wilcox J at first instance, dismissing an application for an order of review (61). An appeal from that order was upheld by the Full Court of the Federal Court (62) on a ground which presents the narrow point which has been canvassed before this Court.

4. Each of the respondents is a national of the People's Republic of China ("PRC"). Each is a member of a group of 68 Chinese passengers who left southern China on or about 27 July 1992 in a boat subsequently code-named "Labrador". That boat arrived at Christmas Island on 23 August 1992. The passengers and crew were flown to Port Hedland, Western Australia, where they were detained. Originally, all 68 indicated, on the appropriate form, that they claimed recognition as refugees and, on that basis, the right to remain in Australia. Over time, a number of them abandoned their claims and returned to China. A small number was granted refugee status. A smaller number of the remainder persisted with their claims. The respondents were accepted, in respect of certain common grounds of challenge, as representative of that number. They originally had individual points of complaint. But, as the appeal was argued before this Court, it tendered a common issue, the importance of which concerns the approach taken by the Federal Court to judicial review in such cases.

5. The decisions under review in the three cases in question were made by delegates of the Minister.

6. By the Migration Act 1958 (Cth), s 22AA (inserted by s 8 of the Migration Amendment Act (No 2) 1992 (Cth)), it was (63) provided that, if the Minister was satisfied that a person was a refugee, the Minister might determine in writing that the person was a "refugee" as defined in the Convention relating to the Status of Refugees signed at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees signed in New York on 31 January 1967. Australia is a party to each of these international instruments. By the Act, "refugee" is given the same meaning in Australian law as it has in the Convention (64). It defines a refugee as a person who (65):

"owing to well-founded fear of being persecuted for reasons of

7. In order to process the respondents' claims with appropriate speed, a special team of officers of the appellant's Department, as then constituted, was flown to Port Hedland. Each of the officers was appointed a delegate of the Minister. Arrangements were also made for the provision of legal advice and assistance to the applicants by Australian Lawyers for Refugees Inc, ("ALRI") an independent body. Six interpreters were also provided. Procedures were adopted to permit separate interview of the applicants. The leader of the departmental officers acknowledged that he had taken to Port Hedland a "standard paragraph" intended to deal with a claim by an applicant that, if returned to China, he or she would be punished for having illegally departed the country. Correctly, it was anticipated that the applicants would make such a claim. Before the delegates, the respondents now before the Court did so. To address further common claims, additional "standard paragraphs" were prepared for use by the delegates, if appropriate. This was done following consultation between a legal officer of the Department and a member of the ALRI legal team. This Court is not concerned with the foregoing procedures, except as they affected the provision of reasons expressed in substantially common terms in respect of the applications of each of the respondents. Arguments pressed and rejected below that the "standard paragraphs" evidenced a failure on the part of the delegates to bring to bear upon their decisions their own individual consideration and particular assessment of each case were not pressed in this Court. I would therefore make no observation on the technique used as it is not an issue before us.

8. Eventually, the delegates rejected the claims of each of the respondents. Each delegate accepted that fear of punishment for illegal departure was "Convention related for reasons of imputed political opinion". Thus, each delegate accepted that the "subjective requirement" (66) of the applicable definition of "refugee" was present in respect of each of the respondents. Each delegate then proceeded to decide whether the objective requirement was also met. Each referred to the formulation of that test in Chan v Minister for Immigration and Ethnic Affairs (67), namely whether there was "a real chance" of persecution for the specified reasons if the applicants were returned to China.

9. In the Federal Court, Wilcox J was not persuaded that error on the part of any of the delegates involved in the respondents' cases had been shown. But the Full Court (Sheppard, Lee and Carr JJ) concluded that error of law was shown. By an analysis of the delegates' reasons for their decisions, that Court accepted that the delegates had, in effect, applied not the "real chance" test mandated by this Court in Chan but a balance of probabilities test, appropriate to most civil litigation but impermissible in this. The Full Court upheld the appeal on this ground. It therefore did not have to proceed to a second ground of challenge concerning a complaint of alleged departures by the delegates from the requirements of procedural fairness. It ordered that the appeals of the respondents be upheld. The orders made by Wilcox J were set aside. So were the orders of the delegates. The respondents' applications were remitted to the Refugee Review Tribunal for consideration according to law.

10. It is from those orders that the appeal by the Minister comes to this Court.

Reasons of the administrative decision-makers
11. Separate reasons were given by the administrative decision-makers, the delegates, in respect of each of the respondents. However, the structure of the reasons in each case was common. Because of the common experience of the applicants, like submissions made in each case, much identical evidence and the hearing procedure which was adopted, many of the paragraphs of the delegates' decisions are common or very similar.

12. The decision in Mr Wu's case may be taken as typical for present purposes. The delegate of the Minister was Ms Margaret Carlson. Her decision bears the date 16 June 1993. It sets out short details of the background of the applicant and of his arrival in Australia. This is followed by a summary of the "processing history", of his application for refugee status and a summary of what are called his "claims/submissions". There then follows an "assessment" by reference to each of the Convention grounds for refugee status, with a closing section on "non-Convention reasons" and a reference to "general and cumulative grounds". The decision of the delegate is then stated. The evidence relied upon is annexed. The entire reasons in Mr Wu's case comprise 19 pages in length.

13. No claim was made by Mr Wu on the grounds of "race, religion or nationality". His claim on the basis of his membership of a "particular social group" related to his membership of a "counter-revolutionary" family and of the class of "poor and disadvantaged" in China. This separate claim was rejected. But it was treated by the delegate as subsumed under the principal basis of claim, viz imputed political opinion. No separate point arises upon that decision. It is the treatment of the subject of political opinion, over four pages of the opinion of the delegate, which attracted the attention of the Federal Court and the arguments in this Court. The respondent supported the decision under appeal contending that, both in its structure and in its language, the delegate's reasons portrayed lip service to the "real chance" test but no true application of that test to the facts presented in his case.

14. The delegate first recounted Mr Wu's expressed concerns about persecution following the suffering which he and his family had gone through during the Cultural Revolution in China. But she concluded that there was no "real chance" of persecution on that ground if he were returned to China. She so concluded by reference, amongst other things, to the repudiation of the policies of the Cultural Revolution by the present government and ruling Party in China, the substantial passage of time since the Cultural Revolution took place and the absence of material showing adverse treatment to others in recent years. There is then a reference to the arrest of Mr Wu's father on the basis of his alleged "counter-revolutionary" status. The delegate linked this to the Cultural Revolution but considered that she could "give little weight" to these claims: "The connection is at best tenuous and unsubstantiated."
In considering suggestions of continuing persecution upon this ground, the delegate stated that she had "given weight to" a number of specified matters including the applicant's possession of a valid ID card, proved domestic movements within China prior to his departure and a statement by his brother that there had been no trouble with authorities since 1986.

15. The delegate then turned to the impact of Mr Wu's departure on the "Labrador" and his activities since his departure (including media coverage) with the risk that this could give rise to persecution if he were returned to China because of the embarrassment which he, and his fellow passengers, had caused to China. Of this, the delegate said:

"(2) I accept that it is LIKELY that the applicant will be

16. The delegate then turned to reports of studies of other illegal departees which had been received as part of the record:

"(4) I find case studies of returned illegal departees eg the

...

(6) There is a case of harsher treatment of a returnee from Japan

(7) Of all the cases outlined above, the departure and activities

(8) I find that the treatment of the returnees from the 'Jeremiah'

17. After reference to letters from other members of the "Labrador" group who had returned to China, the delegate concluded:

"(12) Therefore, I find that there is not a real chance that the

18. Mr Wu's arguments in the Federal Court and before this Court rested principally on the delegate's statement that she had "given greater weight" to the treatment of the returnees from the "Jeremiah" than to other evidentiary material. This, it was argued, was the language of probability, ie the weighing of evidence. It was not the assessment of "chance" required by this Court in Chan. That impression was reinforced by the exclusion of consideration of the applicable law of the People's Republic of China (PRC law) and its administrative measures on the basis that, to consider them, would be "speculative". The evaluation of whether "a real chance" had been established in the case necessarily involved a degree of speculation. No one knows with certainty what the future holds. A departee who is returned to China is no exception. Therefore, the process of speculation and the weighing of reasonable possibilities was precisely what was required by Chan but, so it was said, excluded in this case by the delegate's expressed reasons.

19. So far as the structure of the decision was concerned, it was pointed out that, at the conclusion of the references to the weighing of some considerations and the rejection of others as speculative, the delegate did not, on the face of her reasons, return to evaluate, notwithstanding the foregoing, the elements of "chance" which the applicable test, mandated by Chan, required. She referred to that test. But she did so in the context of, and for the reasons already stated ("therefore") which contained the errors specified.

Decisions of the Federal Court
20. The foregoing complaints (and others) did not impress Wilcox J. But in the Full Court of the Federal Court, their Honours upheld the submissions as evidencing an error of law (68):

"Having reflected on the matter, we have reached the conclusion

Here the delegate has put speculation aside so one does not know

Similar opinions were expressed in the cases of Mr Huang and Mr

Approach to review
21. The adoption by this Court of the "real chance" test in Chan ended a controversy concerning the approach which should be taken to the evaluation of whether a fear of future persecution was, within the Convention definition, "well founded" or not. In England, the House of Lords in Reg v Home Secretary; Ex parte Sivakumaran (71) had spoken of the need for an applicant to prove "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" (72) or face "a real and substantial risk of persecution" (73). The Supreme Court of the United States of America adopted a similar criterion, namely that "it is enough that persecution is a reasonable possibility" (74).

22. It is highly desirable, in the application of an international convention, designed to have global application, that courts in principal countries of refuge should, if possible, adopt a similar approach. When the matter came before this Court in Chan, a slightly different verbal formula was adopted by the Court, viz that the applicant should show "a real chance" of persecution. This formulation was preferred, according to Mason CJ (75):

"because it clearly conveys the notion of a substantial, as

23. This, therefore, is the test to be applied in Australia. Although the applicable legislation was amended between the decision in Chan and the decision in this case, it was not suggested by the parties in the Federal Court, or in this Court, that the change of legislation was material. I would reserve the possible importance of the change to a case where the matter has been the subject of full submissions by the parties and contested in the courts below.

24. The delegate in the case of each of the respondents made express reference to the holding in Chan. The suggestion that this was but "lip service" and that a true analysis of the primary decision shows that it miscarried in law, presents a familiar problem for judicial review. What are the principles which should guide the judge conducting that review and appellate courts supervising such a decision?
1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law (77);
2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others (78). This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker;
3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law (79);
4. Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned. It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense;
5. The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review (80). The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts;

6. In reviewing reasons and decisions of the delegates of the Minister, such as are in contest in this appeal, it is appropriate to take into account the fact that they were not untrained laymen. They had obvious expertise for the performance of their functions. By the evidence, they also had legal advice available to them. They were obviously familiar with relevant legal authority, including of this Court. Standard paragraphs for their decisions were prepared evidencing what were suggested to be considered positions on common matters of approach which, it was accepted, they had to take into account. The decisions committed to them are extremely important for the persons involved. But they are also important to Australia as a recipient nation. This is because the composition of its community is in question. Its conformity with an important international convention is at stake. Its reputation as a country of refuge which decides claims of refugee status according to law is involved. A decision that legal error has been demonstrated in the reasoning of a delegate does not automatically entitle the applicant to be accepted as a "refugee". It simply secures to him or her the basic entitlement, enjoyed by every person sheltering under the laws of this country, citizen or not. Every person is entitled to have such serious decisions made by the application of the true legal test. If error is shown, the claim is not upheld. Refugee status is not automatically granted. The matter is simply recommitted (in this case to the Tribunal) for redetermination according to law;
7. This Court must pay appropriate regard to the fact that the process before it is an appeal against a decision of the Full Court of the Federal Court which followed reflection by the judges of that Court upon the arguments put to them concerning a decision which in part, at least, involved an impression derived from considering the delegate's reasons. For similar reasons, the Full Court, hearing the appeal from Wilcox J, was obliged to pay proper regard to his Honour's impression on the same materials. In reviewing the decision of the delegates, the Federal Court was not in a position simply to substitute a different conclusion. It had to be convinced, the burden being upon those who asserted it, that legal errors by the delegates had been shown; and
8. Because the test propounded by this Court in Chan involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a "real chance" that made an established fear of persecution "well founded", an indication that the delegates had put all speculation out of account would certainly show legal error. So would an indication that the evaluation of the "chance" and its "reality" had been made by a test of weighing the probabilities. Two points must be made here.

25. First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan.

26. Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong" (81)? Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution.

Application of the principles
27. When the foregoing principles are applied to the present case, it appears, with respect, that the Full Court of the Federal Court erred in granting the order of review in this case.

28. The assigned reasons for disturbing the opinion of the delegate in Mr Wu's case did not demonstrate the legal error necessary to enliven the Court's jurisdiction to grant the order of review. I do not read the delegate's references as to likelihood and as to the giving of weight to some material as any more than an indication of her process of reasoning in resolving disputed facts put in issue during the hearing. A decision on those disputes had to be made if the factual foundation for the ultimate decision were ever to be provided.

29. In Chan, this Court relied upon findings of fact, express or implied, in the determination of the delegate (82). The criticism of the decision of the Full Court of the Federal Court in that case was based on the opinion in this Court that their Honours had acted on facts which were not, but could have been, "established and stated by the delegate in reasons" (83). There is no suggestion in Chan that this Court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood (84). The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the "real chances" affecting the treatment of the applicant if he or she were to be returned to China.

30. Nor do I consider that the use of the word "speculative", when appearing in its context, indicates a denial of the proper consideration required by the "real chance" test. Rather, I think the word was used there by the delegate as equivalent to saying that the suggested consideration was so conjectural as to be properly discounted. This is the way, for example, that the word "speculative" was used by this Court in Malec v J C Hutton Pty Ltd (85). If a suggestion is judged to be wholly fanciful and without any proper basis in the material placed before the administrator, it will not rise to the level of contributing to the establishment of a "real chance".

31. Ultimately, the question is whether the delegate allowed her mind to consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the "real", as distinct from fanciful, "chances" would bring if the applicant were returned to China. There are several indications that this is precisely what the delegate did. First, she began her findings in the critical passage by referring to:

"what might happen to the Labrador boat people if returned to the
PRC."

32. Given that s 22AA of the Act requires that the Minister be "satisfied" of the matters specified in the section, if refugee status is to be found, I do not consider that the impugned language in the reasons of the Minister's delegate, or their structure, evinces a legal error on the part of the delegate that warrant an order of review (86). In granting that relief to Mr Wu the Full Court of the Federal Court itself erred. This Court should correct the error.

Conclusion and orders
33. A similar analysis in the case of Mr Huang and Mr Liu results in similar conclusions. No good purpose is served by analysing the very similar language of the delegates in those cases, the like conclusions of the Full Court of the Federal Court and the similar arguments advanced for those respondents in this Court.

34. I have mentioned that the Full Court did not deal with an argument advanced for the respondents that, although procedural fairness had been afforded to them in general terms, the delegates had failed to provide draft decisions and an opportunity to comment on them as contemplated in a published statement of Departmental procedures. This point was not raised as a common claim in the hearing in the Federal Court before Wilcox J. It was not disputed that the respondents had failed to show that they had acted in any way in reliance upon the announced procedures. The only basis upon which this further ground was said to occasion error which would sustain the order of review is that it contributed to depriving the respondents of the opportunity to establish before the delegate that the "real chance" test was not applied. As that submission fails it is unnecessary for this Court to reconsider the matter or to remit the proceedings for that purpose to the Federal Court.

35. I agree in the orders proposed.
1 Wu v Minister for Immigration and Ethnic Affairs [1995] FCA 1327; (1995) 57 FCR 432.
2 It has subsequently been repealed by s 9 of the Migration Reform Act 1992 (Cth), as amended by s 5 of the Migration Laws Amendment Act 1993 (Cth).
3 Partly reported as Wu v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294. See also Wu v Minister for Immigration and Ethnic Affairs (No 2) [1994] FCA 1162; [1994] FCA 1162; (1994) 51 FCR 232.
4 [1989] HCA 62; (1989) 169 CLR 379.
5 Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290 had decided that, notwithstanding its form as a condition requisite to a decision to grant an entry permit, s 6A(1)(c) impliedly conferred upon the Minister the function of determining "refugee status" for the purposes of the paragraph so that there was a decision "under" an "enactment" to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied.
6 [1989] HCA 62; (1989) 169 CLR 379 at 389, 398, 407, 429.
7 Wu v Minister for Immigration and Ethnic Affairs [1994] FCA 926; [1994] FCA 926; (1994) 48 FCR 294 at 295.
8 See Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 297; (1993) 43 FCR 100 at 106.
9 See Taylor, "The Right to Review in the Australian On-Shore Refugee Status Determination Process: Is it an Adequate Procedural Safeguard against Refoulement?", (1994) 22 Federal Law Review 300 at 315.
10 [1994] FCA 926; (1994) 48 FCR 294 at 295.
11 [1995] FCA 1327; (1995) 57 FCR 432 at 440.
12 In the case of the second and third respondents, two extra sections appear after the summary of claims and submissions. The purpose of these sections was to classify claims according to whether they were Convention related or not.
13 Goodwin-Gill, The Refugee in International Law, (1983) at 32.
14 [1995] FCA 1327; [1995] FCA 1327; (1995) 57 FCR 432 at 442.
15 [1995] FCA 1327; (1995) 57 FCR 432 at 444.
16 [1995] FCA 1327; (1995) 57 FCR 432 at 444.
17 [1995] FCA 1327; (1995) 57 FCR 432 at 444-445.
18 Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375.
19 [1995] FCA 1327; (1995) 57 FCR 432 at 449-450.
20 [1995] FCA 1327; (1995) 57 FCR 432 at 442.
21 [1995] FCA 1327; (1995) 57 FCR 432 at 444.
22 [1993] FCA 456; (1993) 43 FCR 280.
23 [1993] FCA 456; (1993) 43 FCR 280 at 287.
24 [1993] FCA 456; (1993) 43 FCR 280 at 287.
25 See McAuliffe v Secretary, Department of Social Security [1992] FCA 483; (1992) 28 ALD 609 at 616.
26 (1990) 170 CLR 1 at 35-36.
27 (1994) 55 FCR 375 at 404.
28 [1985] HCA 70; (1985) 157 CLR 290 at 303.
29 [1989] HCA 62; (1989) 169 CLR 379 at 386, 394-395, 404, 411-412, 421, 434.
30 See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 342.
31 Section 6 of the Migration Legislation Amendment Act 1989 (Cth) repealed s 6A, with effect from 19 December 1989, and inserted in the Act a new s 11ZD; s 35 renumbered the new s 11ZD as s 47 of the Act.
32 This section was repealed by s 12 of the Migration Amendment Act 1991 (Cth).
33 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-135; Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd [1994] HCA 61; [1994] HCA 61; (1994) 182 CLR 51 at 64, 84-85, 97-98; Mitchell v The Queen [1995] HCA 59; (1996) 70 ALJR 313 at 319; 134 ALR 449 at 457.
34 See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337.
35 [1925] HCA 53; (1925) 37 CLR 36 at 67.
36 [1972] HCA 73; (1972) 128 CLR 28 at 57.
37 (1977) AC 1014.
38 [1949] HCA 26; (1949) 78 CLR 353 at 360.
39 Federal Commissioner of Taxation v Bayly [1952] HCA 31; (1952) 86 CLR 506 at 510; Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; [1972] HCA 73; (1972) 128 CLR 28 at 57; Commissioner of Taxation v Jackson (1990) 27 FCR 1 at 13; cf Federal Commissioner of Taxation v Peabody [1994] HCA 43; (1994) 181 CLR 359 at 382.
40 [1976] HCA 24; (1976) 135 CLR 110 at 118-119.
41 [1994] FCA 926; (1994) 48 FCR 294 at 295.
42 [1995] FCA 1327; (1995) 57 FCR 432 at 444.
43 [1990] HCA 20; (1990) 169 CLR 638 at 643.
44 (1994) 55 FCR 375.
45 [1995] FCA 1327; (1995) 57 FCR 432 at 440.
46 (1994) 55 FCR 375 at 377.
47 (1994) 55 FCR 375 at 379.
48 (1994) 55 FCR 375 at 407.
49 (1994) 55 FCR 375 at 407.
50 (1994) 55 FCR 375 at 408.
51 (1994) 55 FCR 375 at 408.
52 (1995) 58 FCR 96.
53 (1995) 58 FCR 96 at 100.
54 (1995) 58 FCR 96 at 101-102.
55 (1995) 58 FCR 96 at 102.
56 See also Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 439-440, 458-461; cf Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 at 94.
57 [1989] HCA 62; (1989) 169 CLR 379 at 413.
58 Mahon v Air New Zealand (1984) AC 808 at 814.
59 (1971) 1 WLR 987; (1971) 2 All ER 691.
60 (1971) 1 WLR 987 at 993-994; (1971) 2 All ER 691 at 696.
61 Wu v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294.
62 Wu v Minister for Immigration and Ethnic Affairs [1995] FCA 1327; (1995) 57 FCR 432; 130 ALR 367.
63 s 22AA of the Migration Act 1958 has subsequently been repealed by s 9 of the Migration Reform Act 1992 (Cth).
64 s 4(1).
65 Art 1A(2).
66 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 396.
67 [1989] HCA 62; (1989) 169 CLR 379.
68 Wu v Minister for Immigration and Ethnic Affairs [1995] FCA 1327; (1995) 57 FCR 432 at 444-445; [1995] FCA 1327; 130 ALR 367 at 378.
69 (1994) 55 FCR 375 at 407.
70 See also Chen Ru Mei v Minister for Immigration and Ethnic Affairs [1995] FCA 1347; [1995] FCA 1347; (1995) 130 ALR 405 at 410-413; Taing Kay Chew v Minister for Immigration and Ethnic Affairs, unreported, Federal Court, 22 December 1994 at 8; Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 439-449 per Einfeld J, 458-461 per Foster J.
71 (1988) AC 958.
72 (1988) AC 958 at 994.
73 (1988) AC 958 at 1000.
74 Immigration and Naturalisation Service v Cardoza-Fonseca [1987] USSC 32; (1987) 480 US 421 at 425.
75 [1989] HCA 62; (1989) 169 CLR 379 at 389. In Grahl-Madsen, The Status of Refugees in International Law (1966) at 181 the author states: "If there is a real chance that he will suffer persecution, that is reason good enough, and his 'fear' is 'well founded'."
76 [1986] HCA 29; (1986) 161 CLR 10 at 21.
77 Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 286-287.
78 eg Rimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; cf Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280; McAuliffe v Secretary, Department of Social Security [1992] FCA 483; (1992) 28 ALD 609 at 616f and cases there cited esp Politis v Federal Commissioner of Taxation (1988) 88 ATC 5, 029 at 5, 032; 16 ALD 707 at 708.
79 eg Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 341, 356; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
80 Australian Broadcasting Commission Staff Association v Bonner (1984) 54 ALR 653 at 668-669; Pearce, "Judicial Review of Tribunal Decisions: The Need for Restraint" (1981) 12 Federal Law Review 167.
81 Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441 per Einfeld J.
82 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 414, 422.
83 Chan [1989] HCA 62; (1990) 169 CLR 379 at 391.
84 Chan [1989] HCA 62; (1990) 169 CLR 379 at 422.
85 [1990] HCA 20; (1990) 169 CLR 638 at 643.
86 cf In re H (Minors) [1995] UKHL 16; (1996) 2 WLR 8 at 30; Chan v Canada (Minister of Employment and Immigration) (1995) 128 DLR (4th) 213 at 259.