Case: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379
Outcome: cited
The grounds of what appears to have been a joint application on behalf of both applicants before Mathews J were initially as set out in a letter or memorandum attached to the application. Summarising as best I can they set out the following propositions: 1. In making assessments the 'authorities' (which I take, for present purposes, to refer to the Tribunal) had failed to take into account an important principle stated in the Handbook published by the United Nations High Commission for Refugees. The relevant principle was that the determination of refugee status will primarily require an evaluation of the applicant's statements rather than a judgment on the situation prevailing in his country of origin. The authorities called upon to determine refugee status are not required to pass judgment on conditions in the applicant's country of origin. 2. The Tribunal failed to implement the law stated by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379, namely: 'If a person gives a coherent credible account of his experience suffered which bring him within the definition of refugee, that at least raises a prima facie case and if there are any matters to the contrary the authorities should put them to the person for his response.' This was in fact a quotation from counsel's submissions in the Chan case and not part of the judgment of the High Court. 3. According to the 1951 Refugees Convention (the Convention) 'a fear of persecution is 'well-founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.' Where an applicant establishes that there is a real chance of persecution then the fear is 'well-founded'. The Tribunal misconceived the Convention by ignoring the applicants' claims and evidence. In this case the applicants had claimed to have suffered discrimination, beatings, numerous threats, intimidation for Convention related reasons and to have been deprived of civil and political rights of protection. 7 The memorandum backing the application set out another group of contentions related to persecution and the application of Article 33 of the Convention. Definitions of persecution and discrimination were set out. Reference was made to the circumstances in which persecution inflicted by non-State agents is 'knowingly tolerated by authorities when they refuse or prove unable to order effective protection'. It was said to be obvious that the persecution suffered by the applicants in their country of former residence was related to Convention grounds. It was said to be obvious that a person who had suffered such persecution would have a well-founded fear of persecution within the meaning of the Convention. 8 It was also said in the memorandum that the Tribunal had failed to take into account another legal principle, namely, in holding that the evidence before it did not support a finding that if the applicants returned to Latvia they would face a real chance of discrimination in that country amounting to persecution. Chan's case was cited to the effect that past persecution gives rise to a presumption of future persecution. Finally it was said that the Tribunal had failed to implement 'the benefit of the doubt' provision. Having no evidence to the contrary they found the applicants had no fear of persecution.