• Survive Law

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Updated: Jul 20

Administrative Law, Judicial Review, Beneficial construction


Facts; Wu Shan Liang and two others were Chinese nationals who arrived in Australia in 1992 and sought refugee status. Delegates of the minister rejected the applications, finding that although the respondents did fear punishment upon returning to China for reasons of imputed political opinion, those fears were not well-founded (applying the real chance test in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at #48). The respondents applied for judicial review under the administrative decisions (judicial review) act 1977 (Cth) in the Federal Court, which dismissed their application. The respondents appeal to the full court, which allowed the appeal. The minister appealed by special leave to the High Court.


Application; 'When the full court referred to the "beneficial construction" it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case… [it] was said that a court should not be concerned with the looseness in the language… nor with unhappy phrasing of the reasons of an administrative decision maker at 287. The court continued: the reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error.


These propositions are well settled they recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy maybe gleaned from the way in which the reasons are expressed. In the present context any court reviewing the decision upon refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brendan J in Attorney General (NSW) v Quinn at 35-6: the duty and jurisdiction of the court to review administrative action does not go beyond the declaration and enforcement of the law which determines the limits and governs the exercise of the repositories power (Brennan CJ, Toohey , McHugh & Gummow JJ at 271-2).


Holding; The High Court allowed the appeal, finding that the federal court had not given a beneficial construction to the reasons of the delegate – who had in fact formulated and applied the correct tests – but rather, had analysed them as though they were statutory formulations. The High Court found that the delegate had started and finished with the correct test from Chan (being whether there was a real chance of persecution) and had only temporarily lapsed into the phraseology of speculation (which would suggest a test of balance of probabilities).


55 views0 comments