Case: SZLGP v Minister for Immigration &amp; Citizenship [2008] FCA 1198
Outcome: considered
appeal came on for hearing before Gordon J. On 2 September 2008, for reasons which her Honour then published, the appeal from the Federal Magistrates Court was allowed. The matter was remitted to the Tribunal to be heard and determined according to law: SZLGP v Minister for Immigration &amp; Citizenship [2008] FCA 1198. On 19 February 2009, a differently constituted Tribunal decided to affirm the refusal decision made by the Minister's Delegate. The Appellants made a further judicial review application to the Federal Magistrates Court. On 15 June 2009, for reasons given that day, the Federal Magistrates Court dismissed the Appellants' judicial review application. It is from that decision that the Appellants appeal once more to this Court. The basis upon which the male Appellant claimed a protection visa was set out in a statement annexed to the visa application. In her judgment in the first appeal Gordon J offered (at [5]) the following summary of the basis of the claim, which I gratefully adopt: The first appellant was born in 1960. He claimed he owned and ran a freshwater fish farm in Fujian province near Fuqing city and that his life was uneventful until he was contacted by a distant cousin in August 2006. That cousin was in dispute with local authorities from Putian city over the alleged confiscation of his land and a failed promise by the government to deliver compensation to the landholders whose land had been confiscated. The first appellant claimed that at that time he gave this cousin a job working on his fish farm. In October 2006, the first appellant claimed that his cousin's brother (who had organised for local farmers near Putian city to protest about the confiscation of his land) had been arrested by the Public Security Bureau ("the PSB"). The first appellant's cousin was required to return to his hometown. The first appellant gave his cousin some money (10,000 Yuan) and a letter to a friend (Mr Zhou) whom the first appellant knew in Putian City, and who worked for the local government. The first appellant also telephoned Mr Zhou to plead for his help 'to save' the cousin's brother, who was soon released. The cousin and his brother continued to be embroiled in disputes with the local authorities over the land confiscation. On 11 November 2006, the first appellant was contacted by Mr Zhou who informed him that there had been a major conflict and that some farmers had been injured. Later that day the first appellant's cousin contacted him and told the first appellant that he and his brother were in hiding. The first appellant picked them up and took them to a 'secret place'. The next day (12 November 2006) the police attended the first appellant's farm and questioned him for two hours. The police came again five to six times, but they could not find anything. The first appellant told them nothing. The first appellant was scared and 'had to start applying' to go overseas for his own safety. The first appellant helped to arrange for the safe passage for his cousin and cousin's brother out of China to Taiwan on a fishing boat. However, the cousins were discovered by the navy and immediately arrested. The first appellant was concerned that he would be exposed by his cousins and immediately went to Guangzhou. On 17 December 2006, the first appellant left China from Guangzhou. The first appellant claimed that since leaving China the police have come to his home with an arrest permit on three occasions and he has been denounced as a protector of political dissidents. The first appellant claimed he is on the blacklist of the PSB and will be arrested as soon as he returns to China. I have chosen to refer to the person whom her Honour has described as the "first appellant" in the passage quoted as the "male Appellant". No different claim was made before the Tribunal on the second review hearing. However, as will be seen, the evidentiary foundation for that claim at that hearing differed in a crucial respect from that provided to the Tribunal at the time when it first reviewed the Minister's Delegate's visa refusal decision. On this occasion, the Appellants advanced the following grounds of appeal from the decision of the Federal Magistrates Court: Grounds The Federal Magistrates erred in law. The Federal Magistrates was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings. Particulars The Tribunal failed to comply with its obligations under s 424A of the Act. The Tribunal failed to comply with its obligations under s 425 of the Act. The Tribunal failed to consider my claims properly and fairly. Tribunal made its finding actually based on unwarranted assumption; the Tribunal ignored or failed to consider a claim I made to it; the Tribunal ignored other relevant materials which was before it; and the Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact. [sic] The so-called grounds of appeal are so vaguely stated as to be devoid of meaning. That position is not really ameliorated by the so-called particulars, which are noteworthy not only for their generality of expression but also for their failure to focus upon what is alleged to be error on the part of the Federal Magistrates Court, as opposed to the Tribunal.