Note: this case summary only considers the administrative law component – i.e. whether a decision was made “under an enactment”. This case is also a precedent for the definition of ‘well-founded fear of persecution’, however we will not address that.
- Chan was a Chinese national who belonged to a family who were considered “anti-revolution” by China.
- His family experienced discrimination and persecution that saw him flee as a stowaway to Australia, entering illegally.
- Chan then applied for a temporary entry permit, and refugee status at the same time. Both were required for Mr Chan to get a permanent entry permit under s 6A of the Migration Act.
- Both were rejected, in separate decisions by separate decision makers.
- Chan appealed.
- The minister argued (albeit half-heartedly) that as he did not have a temporary entry permit under the relevant Act, the decision to reject the refugee status was not a decision made “under an enactment”.
- Was the decision to reject Chan’s refugee status made “under an enactment”, although he did not have a temporary entry permit?
- The Court held that it was a decision made “under an enactment”.
- Toohey J explained that the Minister had clearly considered the factors under the Act and made a decision. They did not refuse to consider the application because he lacked the entry permit, and the existence of the entry permit was not a pre-requisite to determine refugee status.
- “I am sufficiently persuaded that the determination was a decision made under the Migration Act; the Act was the source of the consideration given by the Minister’s delegate and of the determination ultimately made.”
- The full text is available here: https://www.refworld.org/pdfid/3ae6b70a4.pdf
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