Li Shi Ping and Liu Xiu Ling v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1512;

Li Shi Ping and Liu Xiu Ling v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1512; - FCA 1994 case summary — Zoe

[19]

5. Upon arrival, the appellants along with other members of the "Jeremiah" group, were taken to a detention centre near Darwin and interviewed by the Compliance Section of the Department of Immigration ("the Department"). The purpose of these interviews was to seek to confirm their identities, how they came to Australia, where they came from and why they came here. All indicated that they wished to apply for refugee status. The process for the determination of refugee status ("DORS") was then set in train. On 15 May 1992 the entire group attended a meeting with a Mr Illingworth of the DORS Branch of the Department. Also present were a Mr Michael Ian Kennedy and Mr Justin Kevin Rickard. Both Mr Kennedy and Mr Rickard are solicitors associated with an organisation known as Australian Lawyers for Refugees Incorporated ("ALRI"). ALRI is an incorporated non-profit association whose function is to provide legal assistance to persons applying for refugee status. Mr Kennedy is the Secretary of ALRI and Mr Rickard was a solicitor contracted to it to provide assistance to members of the "Jeremiah" group. Mr Illingworth read a statement to the group which included the United Nations Convention ("the Convention") definition of a refugee and an outline of the procedures which would be followed in assessing their applications for recognition as refugees. He informed the group that Mr Rickard and Mr Kennedy were independent lawyers who were available to help them with their applications, should they wish to avail themselves of such assistance. In his statement to the group Mr Illingworth emphasised the importance of providing all details which they considered relevant to their application for recognition as refugees and that it was extremely important to tell the truth, as their credibility would be of fundamental importance to the determination of whether or not refugee status would be granted. The statement which Mr Illingworth read out also contained an assurance that any information given to the Australian authorities during the refugee determination process would be treated as confidential and would not be disclosed to the Chinese authorities. Copies of Mr Illingworth's statement, translated into Cantonese, were handed out to each member of the group.

[31]

15. In his amended notice of appeal Mr Li appeals from the dismissal of both his application for an extension of time and his application for review. Ms Liu appeals from so much of the order remitting her application for refugee status as depends upon the holding that, upon such remission, the respondent is confined to reconsideration of the only matter identified by his Honour as an error of law on the respondent's part. The error of law so identified by the learned trial judge related to Ms Liu's employment prospects if she is returned to China. Mr Barnsley, the review delegate, was prepared to accept that it was likely that Ms Liu will continue to face employment difficulties on return to China, in that she may be denied employment by her work unit. Mr Barnsley was prepared to accept, for the purpose of considering Ms Liu's submissions, that these employment difficulties resulted from her political activities and those of her father. However, Mr Barnsley was not prepared to find that this amounted to a denial of the right to earn a living, but merely a limitation on the field in which this can be done. It was, so his Honour held, implicit that had Mr Barnsley considered that Ms Liu's inability to obtain employment by her work unit amounted to a denial of the right to earn a living, this would have amounted to persecution within the Convention definition. As his Honour noted, such circumstances would be well capable of constituting persecution within the Convention definition of "refugee": see Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1988) 169 CLR 379 at pp 430-431. The only evidence before Mr Barnsley relating to the consequences of being denied employment by a work unit in China was to the effect that once sacked from a work unit for political activities a person would be very likely confined to obtaining employment in the private sector. The evidence was that employment in the private sector in China accounted for less than 1% of all urban workers. Employment would therefore be extremely difficult to find. His Honour held that it was not open for Mr Barnsley to draw the distinction (which he had drawn) between a denial of Ms Liu's right to earn a living and a mere limitation on her right in that regard. Hence there was error of law on his part.

[39]

"411. (1) Subject to subsection (2), the following

decisions are RRT -reviewable decisions:

(a) a decision, made before 1 September

1994, that a non-citizen is not a

refugee under the Refugees Convention

as amended by the Refugees Protocol

(other than such a decision made after

a review by the Minister of an earlier

decision that the person was not such

a refugee);

...

(2) The following decisions are not RRT-reviewable

decisions:

(a) decisions made in relation to a non-citizen who

is not physically present in the migration zone

when the decision is made;

(b) decisions in relation to which the Minister has

issued a conclusive certificate under

subsection (3).

..."

"413. (1) This section applies to an RRT - reviewable

decision covered by paragraph 411(1)(a) or (b) if:

(a) an application was made before 1 July 1993 for

review of the RRT-reviewable decision; and

(b) if, at the time when the application was made,

there were in force regulations dealing with

applications for review of such a decision -

the application was made in accordance with

those regulations; and

(c) any of the following sub-paragraphs applies:

(i) no decision on the review was made

before the commencement of this

section;

(ii) all of the following sub-paragraphs

apply:

(A) a decision (the "initial review decision")

on the review was made before the

commencement of this section;

(B) the initial review decision was quashed or

set aside by a court before the

commencement of this section;

(C) the matter to which the initial review

decision relates was referred by the court

for further consideration;

(D) no decision on that further consideration

was made before the commencement of this

section;

(iii) all of the following sub-subparagraphs

apply:

(A) a decision ("the initial review decision")

on the review was made before the

commencement of this section;

(B) the initial review decision is quashed or

set aside by a court after the commencement

of this section;

(C) the matter to which the initial review

decision relates is referred by the court

for further consideration.

. . .

(2) A valid application is taken to have been

made under s.412 for review of the RRT-reviewable

decision.

(3) No action is to be taken to review the RRT

reviewable decision otherwise than under this Part.

(4) This section has effect despite any other

provision of this Act or the regulations.

. . .".

At a glance

Court

Decision date

Before

Source

Judgment (96 paragraphs)

Li Shi Ping and Liu Xiu Ling v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225 (28 November 1994)

Parties

Legislation Cited (3)

Cases Cited (11)