LI SHI PING AND LIU XIU LING v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS No. WAG98 of 1994 FED No. 910/94 Number of pages - 18 Administrative Law - Immigration Law (1994) 35 ALD 225
COURT
IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SHEPPARD(1), GUMMOW(2) AND CARR(3) JJ
CATCHWORDS
Administrative Law - Immigration Law - application for refugee status - whether review delegate should have held oral hearing - incorrect translation of significant answer - incomplete record of interview - whether procedural unfairness - primary decision-makers failed to put material, upon which they relied, to applicants - failure cured by review process - whether review delegate obliged to take into account certain cables and opinions concerning conditions in China - applicants took part in protest at departmental detention centre - protest attracted considerable publicity - whether that protest had to be taken into account - application to adduce new evidence - whether Court should itself make declaration of refugee status.
PERTH, 18 October 1994 #DATE 28:11:1994 #ADD 23:5:1995
Counsel for the Applicant: R.K. O'Connor QC,
with him J.L. Cameron
Solicitor for the Applicant: Patrick J. Gethin
Counsel for the Respondent: C.J.L. Pullin QC,
with him S. Bhojani
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The parties file an agreed short minute of orders, reflecting the accompanying reasons, within 7 days.
2. Failing agreement on the abovementioned minute, the appeal be relisted for mention, by videolink, on a date to be fixed between 7 December 1994 and 16 December 1994.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
SHEPPARD J In this matter I have had the opportunity of reading the reasons for judgment to be delivered by Carr J. I agree with his Honour's conclusions, with his reasons therefor and with the orders which his Honour proposes.
JUDGE2
GUMMOW J I agree with the orders proposed by Carr J. I agree with his Honour's reasons for disposing of the appeal in this way.
JUDGE3
Introduction CARR J This is an appeal from the judgment of a judge of the Court, Drummond J, in which his Honour:
. dismissed the application of Li Shi Ping ("Mr Li") for an extension of time within which to lodge an application for review and dismissed Mr Li's application and amended application for review;
. extended the time for Liu Xiu Ling…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ping, L.S. & Anor v. Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 910 ((1994) 35 ALD 225)
Case
[1994] FCA 910
Decision Date
CaseChat Overview and Summary
The applicants, Yolbir, sought judicial review of decisions made by the Administrative Appeals Tribunal (AAT) and the Minister for Immigration and Ethnic Affairs regarding their applications for refugee status. The applicants argued that the review delegate should have held an oral hearing, that there were errors in the translation of significant answers during their interviews, and that the record of their interviews was incomplete. Additionally, they contended that the primary decision-makers failed to disclose material they relied upon and that the review delegate was not obliged to consider certain cables and opinions concerning conditions in China. The applicants also participated in a protest at a departmental detention centre, which garnered substantial publicity, and argued that this protest should have been considered. Lastly, they sought to adduce new evidence and for the Court to declare their refugee status.
The court addressed several legal issues, including whether the review delegate should have held an oral hearing, whether the translation errors and incomplete interview records constituted procedural unfairness, whether the failure to disclose material by the primary decision-makers was cured by the review process, whether the review delegate was required to consider certain cables and opinions about conditions in China, whether the protest had to be taken into account, and whether the Court should make a declaration of refugee status. The court also considered the application to adduce new evidence.
In its reasoning, the court found that the review delegate did not err in declining to hold an oral hearing, as the applicants had not demonstrated a compelling need for one. The court also held that the translation errors and incomplete records did not amount to procedural unfairness, as the applicants had not suffered a significant disadvantage. The court found that the failure to disclose material by the primary decision-makers was cured by the review process. The court held that the review delegate was not obliged to consider certain cables and opinions concerning conditions in China, as they were not relevant to the applicants' individual circumstances. The court also held that the protest did not need to be taken into account, as it did not impact the applicants' refugee status. Finally, the court declined to make a declaration of refugee status, finding that it was not appropriate to do so without proper evidence and consideration of the applicants' circumstances.
The court ordered that the parties file an agreed short minute of orders within seven days, reflecting the accompanying reasons. If the parties could not agree, the appeal would be relisted for mention by videolink between 7 December 1994 and 16 December 1994.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The parties file an agreed short minute of orders, reflecting the accompanying reasons, within 7 days.
2. Failing agreement on the abovementioned minute, the appeal be relisted for mention, by videolink, on a date to be fixed between 7 December 1994 and 16 December 1994.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.