Yan v Minister for Immigration and Ethnic Affairs [1995] FCA 701

CATCHWORDS MIGRATION - decision not to grant refugee status - affirmed by Refugee Review Tribunal - whether Tribunal's findings manifest reviewable error - limit on Court's role in reviewing Tribunal's findings of fact. Administrative Decisions (Judicial Review) Act 1977 (Cth), s5 Judiciary Act 1901 (Cth), s39B Chen Ru Mei v Minister for Immigration and Ethnic Affairs, unreported, Full Court 30 June 1995 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 No. NG 786 of 1994 YI DE YAN -v- MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

MOORE J SYDNEY 5 September 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 786 of 1994 ) GENERAL DIVISION ) BETWEEN: YI DE YAN Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 September 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. 2. The aplicant pay the respondent's costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 786 of 1994 ) GENERAL DIVISION ) BETWEEN: YI DE YAN Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 September 1995 REASONS FOR JUDGMENT This is an application under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and s39B of the Judiciary Act 1901 (Cth) seeking the review of a decision of the Refugee Review Tribunal ("the Tribunal"). The decision of the Tribunal was to affirm a decision of a delegate for the Minister for Immigration and Ethnic Affairs made on 7 August 1992 that Yi De Yan (the applicant) is not a refugee and that the applicant be refused a domestic protection (temporary) entry permit. The delegate's decision had been reviewed on an earlier occasion by the Tribunal and the Tribunal's decision has been set aside by consent on 19 January 1994 in proceedings in this Court. The decision of the Tribunal to which these proceedings relate was made on 17 October 1994. Background The general background leading to the application for the entry permit is not, for the purposes of these proceedings, contentious. It is recounted by the Tribunal in its reasons for decision and I have drawn on that decision in summarising it. In January 1990 the applicant entered Australia as a student on an entry permit for nine months. He remained in Australia at the expiry of that permit. The applicant was born on 27 March 1963 in Shanghai. He came from a family that had experienced harsh treatment at the hands of the authorities in China at least during the period of the Cultural Revolution. He attended primary and secondary school in China. From August 1982 to October 1989 he worked in a watch and clock factory in Shanghai. He participated in the civil unrest in China as part of the pro-democracy movement in 1989. Shortly after arriving in Australia the applicant joined the Federation for a Democratic China and has been involved in its activities or the activities of like organisations since then. The significance of his involvement in these organisations was an issue in the proceedings before the Tribunal and is a matter I return to later.