Qiu v Minister for Immigration & Ethnic Affairs

[1994] FCA 894

8?4j 99

JUDGMENT NO. ..... .W.- -

E FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 739 of 1994

1

GENERAL DIVISION 1

BETWEEN:

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RECEIVED

Applicant

- 2 DEC 1994

~ R A L

COURT OF

AND :

MINISTER FOR IMMIGRATION

AUSTRALIA

PRINCIPAL

8

AND ETHNIC AFFAIRS

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REOISTRY

=2 L 9

Respondent

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Q;!

31 OCTOBER 1994

REASONS FOR JUDGMENT

LOCKHART J.

The Court has before it today two matters. One is an application by Mr Qiu against the Minister for Immigration and Ethnic Affairs which seeks an order that the application be expedited and certain final relief relating to the construction and effect of relevant migration regulations. The purpose of the application, as I understand it from what I have been told by counsel, is to, if successful, result in the position where Mr Qiu would be in a advantageous position so far as his right to permanent resident status in Australia is concerned. No interlocutory relief is sought by Mr Qiu. That application was filed on Friday of last week and is returnable today, essentially for an order that the hearing of the

application be expedited.

This afternoon counsel for a Mr Liu filed and has been granted leave to file in Court an application by Mr Liu which in terms seeks what is, in substance, interlocutory relief; but I am assured by his counsel that he seeks that in aid of the substantive relief of the same general kind as Mr Qiu seeks in his proceeding. In essence, what Mr Liu seeks is an order that the Minister be restrained from conducting or causing to be conducted English proficiency tests tomorrow or soon thereafter in the month of November and requiring his attendance at those examinations. The proposed examination is to be held in South Carlton in Melbourne, where Mr Liu presently resides.

The basis of the application for interlocutory relief is in an affidavit of Mr Liuf s solicitor, Mr Pigott, sworn today, which is therefore based on information and belief. Paragraph

4 is the critical paragraph of Mr Piggottls affidavit.

Although he does not state the source of his information and

been assured by his counsel that it is so, that Mr Liu is the	belief it seems obvious from what is said, and indeed I have	source of that information and belief.
Mr Liu is not in Sydney this afternoon and therefore cannot give evidence at such short notice. Another gentleman is apparently in Court, who has some degree of knowledge of the English language and the ability to translate English into the relevant Chinese language and vice versa, but he is not an accredited interpreter, so I am dealing with the matter on the basis of what is said by Mr Piggott in paragraph 4 of his affidavit.
In essence, what is said is that if Mr Liu sits for this English test, which is scheduled to take place tomorrow, he
will be identified by all other candidates for the test - presumably those sitting at the same place - most of whom will
be from China and that they will know or suspect that he has sought political refugee status in Australia.
Mr Liu, it seems, is one of a very large number (many thousands) of people born in the Peoples Republic of China who have been in this country for some time and one way or another may be here or remain here by reason of the incidents that took place in Tiananmen Square some years ago. The affidavit goes on to say that Mr Liu fears that the information could be disclosed to the Chinese government and used to his detriment,
particularly if he ever returned to China. That is the evidence on which I am asked to make restraining orders in
relation to the conduct of the examination so far as Mr Liu is concerned.
Counsel for the Minister has informed me that the examination is due to take place tomorrow and in one or two succeeding days this examination will be held in a number of centres throughout Australia, in particular Sydney and
Melbourne. He also claims that many thousands-odd people will be sitting for the examinations and that to postpone them would cause not only considerable administrative difficulties and inconvenience, but also substantial cost. There is no evidence of this, but then the application has been brought on very short notice and it seems to me that the inconvenience and cost elements are obvious, although the degree of them is not clear.
I am reluctant to grant interlocutory relief on the footing of an affidavit based on information of belief, but if the source of the information or belief is true, a distinctive course from Mr Piggott's account of his instructions, which obviously I accept, then it does seem to me that there could be some real degree of jeopardy to Mr Liu if he in fact attends at the site of the examination and is there examined in the circumstances which he has mentioned.
While I was giving judgment, counsel for the Minister properly mentioned to me that he had received instructions to the effect that the Minister states publicly through the Court, that he will not require the attendance of Mr Liu for the conduct the examinations for which he is scheduled to sit in November, commencing tomorrow 1 November. I understand that examinations are thereafter to be held in January and June of 1995.
Then counsel for Mr Liu indicated that in the light of the Minister's public statement through his counsel, he did not press the motion for interlocutory relief. I see no reason why the Court should not act on the statement of the Minister through his counsel. Obviously it is made responsibility and will be honoured and adhered to.
Accordingly, I think the proper course to take is to simply adjourn the application in its present form for further directions and no doubt one of the matters which counsel will be seeking is an amendment to raise any substantive questions which might be involved, unless he prefers to do so through a separate application; that is a matter for Mr Liu and his advisers.
One other matter that has arisen that I think should be briefly referred to is that it has been made clear to me by counsel for Mr Liu that what Mr Liu has sought might have very
wide ramifications to many thousands of other people in a similar position. The Minister has made it clear through his
counsel that whatever he has said will be done in relation to
Mr Liu and must not be taken any way as a concession it will
be done for anybody else, and I note all that has been said to me in that regard.
All I will add is that if in fact, and I know not the answer, there are other Chinese citizens in substantially the same position as Mr Liu in relation to the forthcoming November examinations, it is to be hoped that a sensible regime can be worked out by agreement between the Minister and the people concerned. But whether the facts in this case are common to other cases, I do not know and make no further observations. Costs of Mr Liurs application this afternoon will be costs in the application itself.

I certify that this and the

preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

associate -&L

Dated: 31 October 1994

Counsel for the Applicant Mr J Duncan

Solicitors for the Applicant :  Brendan Pigott

Counsel for the Respondent	Mr N J Williams
Solicitors for the Respondent :	Australian Government Solicitor
Date of Hearing	31 October 1994
Date of Judgment	31 October 1994

5 December 1994

Just at note to say, could you please replace the original 894-94 with the attached judgment of 894-94.

Thank you

Judgments Clerk