Mei, C.R. v Minister for Immigration & Ethnic Affairs & Anor [1995] FCA 454

Mei, C.R. v Minister for Immigration & Ethnic Affairs & Anor [1995] FCA 454

The Tribunal's review function miscarried because, after accepting in substance that Chen had a genuine fear, it assessed the feared persecution by asking whether the events were likely and then treated their unlikelihood as meaning there was no real chance of persecution. It failed to determine whether the feared penalties and deprivations would amount to persecution for political opinion and whether the chance of such persecution was so remote as to be fanciful or far-fetched.

Jurisdiction
Australia
Judgment Date
30 June 1995
Procedural Posture
Immigration; Refugee Status; Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 of a Refugee Review Tribunal Decision / Appeal From a Judgment of the Federal Court Constituted by a Single Judge Dismissing the Application for Review
Outcome
Appeal allowed; orders appealed from set aside; application for review granted; matter returned to the Tribunal to be dealt with according to law; first respondent ordered to pay costs.
Legal Topics
['well Founded Fear of Being Persecuted' 'real Chance Test' 'political Opinion' 'persecution' 'refugee Review Tribunal Review' 'judicial Review Under the Administrative Decisions (judicial Review) Act 1977']
['immigration Law' 'administrative Law' 'refugee Law'] ['well Founded Fear of Being Persecuted' 'real Chance Test' 'political Opinion' 'persecution' 'refugee Review Tribunal Review' 'judicial Review Under the Administrative Decisions (judicial Review) Act 1977']

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Procedural Posture

Immigration; Refugee Status; Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 of a Refugee Review Tribunal Decision / Appeal From a Judgment of the Federal Court Constituted by a Single Judge Dismissing the Application for Review

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that Chen did not have a well-founded fear of being persecuted for reasons of political opinion.' 'Whether the Tribunal wrongly equated a finding that persecution was unlikely with a finding that there was no real chance of persecution.' 'Whether denial of employment, restriction of liberty, detention or other substantial disadvantages imposed for political opinion could amount to persecution for a Convention reason.']

Ratio Decidendi

The Tribunal's review function miscarried because, after accepting in substance that Chen had a genuine fear, it assessed the feared persecution by asking whether the events were likely and then treated their unlikelihood as meaning there was no real chance of persecution. It failed to determine whether the feared penalties and deprivations would amount to persecution for political opinion and whether the chance of such persecution was so remote as to be fanciful or far-fetched.

Court Disposition

Appeal allowed; orders appealed from set aside; application for review granted; matter returned to the Tribunal to be dealt with according to law; first respondent ordered to pay costs.

Orders

  • ['The appeal be allowed and the orders appealed from be set aside and in lieu thereof it be ordered that the application for review be granted and the matter returned to the Tribunal to be dealt with according to law.' "The first respondent pay the appellant's costs of the application to the Court and the costs of...