Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

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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.”

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