Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62

High Court of Australia Mason C.J. Dawson, Toohey, Gaudron and McHugh JJ. Chan v Minister for Immigration and Ethnic Affairs

ORDER Appeals allowed with costs Set aside the orders of the Full Court of the Federal Court and in lieu thereof order that the appeal to that Court be dismissed with costs. Vary the orders of Keely J. by ordering that the application for refugee status by Chan Yee Kin be referred to the respondent for determination in accordance with this Court's reasons for judgment.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 Mason C.J.

Subject to the comments which follow, I am in agreement with the orders proposed by McHugh J. and with his reasons for judgment.

In the Federal Court the Minister conceded that the delegate's decision was a decision "under an enactment" within the meaning of that expression in s. 5 of the Administrative Decisions (Judicial Review) Act 1977 Cth ("the A.D.(J.R.) Act") and that the Federal Court had jurisdiction to entertain an application for judicial review. In this Court, Mr. Callaway Q.C., for the Minister, though not attempting to resile from that concession, suggested that because Mr. Chan was not the holder of a temporary entry permit there was some doubt whether the decision was made under s. 6A(1)(c) of the Migration Act 1958 Cth ("the Act").

Minister for Immigration and Ethnic Affairs v. Mayer [1] decided that s. 6A(1)(c) impliedly confers on the Minister the function of determining whether an applicant under s. 6A(1)(c) has refugee status and, accordingly, that the Minister's decision is made "under an enactment" so as to be susceptible of review under the A.D.(J.R.) Act. In Mayer the respondent held a temporary entry permit and his application was for a determination that he had refugee status. If he obtained such a determination, he would have satisfied the two pre-conditions in s. 6A(1)(c) essential to the exercise of the discretion to grant a permanent entry permit.