Case: Chan v Minister for Immigration &amp; Ethnic Affairs (1989) 169 CLR 379
Outcome: considered
On the appeal the appellant raises a new argument said to arise from Chan v Minister for Immigration &amp; Ethnic Affairs (1989) 169 CLR 379. The appellant submits that the Tribunal failed to apply the correct test for a well-founded fear of persecution. The appellant submits that, the Tribunal should have applied the required "real chance" test, but instead applied a "probability" test and therefore based its decision on inadequate evidence. Specifically, the appellant submits that for each individual finding of fact, the Tribunal must decide whether that fact is true on the standard of "real chance". If there is a real chance that each fact giving rise to the appellant's individual claims is true, the appellant says that the Tribunal must find itself satisfied that there is a well-founded fear of persecution. 12 The appellant submits that the Tribunal's finding that his testimony was rehearsed and not a product of his personal experience is not supported. The appellant says that there is no material in the transcript or in the written material given to the Tribunal to support this finding, that the Tribunal could not have formed this view based upon the demeanour of the appellant alone and that, if it did so, such a finding could not be justified. Accordingly, the appellant submits that the Tribunal acted arbitrarily or capriciously in making its credibility finding. 13 The appellant requested that Smith FM listen to the tapes of the hearing. His Honour declined to do so and noted at [29] that this exercise would not put him in an equal position with the Tribunal so as to allow him to find that its conclusions were not open to it as a matter of law. His Honour noted that, even if he listened to the tapes, he ' would still be left with the unknown area of the visual and atmospheric aspects of the hearing which must have formed a part in the Tribunal's own assessment '. From a reading of the transcript his Honour concluded that it may have been open to the Tribunal, from the language and responsiveness of the appellant to the Tribunal's questions, to form the impression that the appellant was speaking from a script rather than from his actual memory (at [30]). His Honour noted that the appellant had not pointed to any particular passage in the transcript to demonstrate the contrary. 42 In Chan, McHugh J explained that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is as small as a 10 per cent chance and even if the evidence does not show that the persecution is more likely than not to occur (at 429). In support of his argument that the Tribunal applied the wrong test (the probability test) to his evidence, the appellant points to the High Court decision in Minister for Immigration &amp; Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. In Guo , the High Court emphasised that the "real chance" test is not a substitute for the Convention term "well-founded fear" (at 572). A fear is "well-founded" when there is a real substantial basis for it. It is not well founded if it is merely assumed or if it is mere speculation ( Guo at 572). 43 In Guo at 573, the High Court also affirmed what was said in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281, that 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. 51 The appellant submits that it is evident from the Tribunal decision that the Tribunal was not confidently satisfied that the events did not take place. The appellant submits that the inadequacy of the evidence cited by the Tribunal to support its findings gives rise to the inference that it was not confidently satisfied that the past events did not take place as the appellant claimed ( Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [36] per McHugh and Gummow JJ). The appellant accepts that the attribution of greater weight to one piece of information as against another is not necessarily inconsistent with the correct application of Chan . He argues, however, that this is only appropriate when the question of whether each persecutory event of significance occurred is assessed on real chance and not on probability.