NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1337

FEDERAL COURT OF AUSTRALIA

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1337 NBGZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N904 OF 2004 EMMETT J 10 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N904 OF 2004

BETWEEN: NBGZ

APPLICANT

AND: MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 10 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed pursuant to Order 20 Rule 2(1). 2. The applicant to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N904 OF 2004

BETWEEN: NBGZ

APPLICANT

AND: MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 10 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of the People's Republic of China. He arrived in Australia on 14 January 2004. On 20 January 2004 he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth) ('the Act'). On 10 February 2004 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa. On 9 March 2004 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for a review of that decision, and on 23 April the Tribunal affirmed the decision not to grant a protection visa. 2 On 4 June 2004 the applicant commenced a proceeding in this Court seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal's decision. On 9 July 2004 when the matter came before me for directions I gave leave to the Minister to file and serve a motion for summary dismissal of the proceeding. Pursuant to that leave, the Minister subsequently filed a notice of motion seeking summary dismissal of the application pursuant to Order 20 r 2(1). Order 20 r 2(1)(a) relevantly provides that where, in any proceeding, it appears to the Court that, in relation to the proceeding generally, no reasonable cause of action is disclosed, the Court may order that the proceeding be dismissed. 3 On 2 September 2004 the applicant filed a further amended application. The grounds stated in that application are as follows: 'The Tribunal failed to exercise its jurisdiction by not addressing the claims raised by the applicant, thus failing to take into account a relevant consideration. Particulars The applicant made specific claims in his protection visa application to the effect that he had been arrested and questioned, that his business was forcibly shut down and he was required to report regularly to the police. As a result he was unable to practise his religion freely in China. The Tribunal did not address any of these specific claims in its decision.' 4 In his original application for a protection visa the applicant included a statement dated 19 January 2004. The statement is as follows: 'I am JianHong MENG and Chinese citizen. I'd like to apply for a protection visa as I was persecuted in China because I am a Falun Gong practicer. I fear I will be persecuted again if I return to China. I lost job since my first factory was dissolved. Then, I started practicing Falun Gong introduced by my friend. After short period practice, I found Falun Gong was a good method to relax myself. Meanwhile, I kept the good health by practising Falun Gong. From 1994, I owned one clothing store. Also, I participated Falun Gong activities during my free time. It was unexpected that Chinese government started suppressing Falun Gong from 1999. Unfortunately, I was arrested by policemen in 2002 and detained in the police station. I was beaten at the police station because I refused to answer all questions related to Falun Gong. After answering questions, I was released. But the government informed me that my store must be closed down. I complained but all my demands were refused. I was unemployed again. The police station required me to report my life and work to regularly. I dare not practise Falun Gong any more in China. Actually, I don't want to give up Falun Gong. I'd like to apply for a protection visa in Australia. I would be very appreciative if my application could be approved. Thank you.' 5 On 14 April 2004 the Tribunal wrote to the applicant. The Tribunal's letter began as follows: 'The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone. … We now invite you, and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.' 6 The letter went on to refer to an enclosed form inviting the applicant to tell the Tribunal whether he was coming to the hearing or not. The applicant completed that form on 21 April saying that he did not want to come to a hearing of the Tribunal. The Tribunal's reasons include the following under the heading 'Claims and Evidence': 'The applicant has claimed to be a Falun Gong practitioner and would be persecuted for that reason. He had been arrested and detained in 2002, and beaten for refusing to answer questions about Falun Gong. The government had told him to close down his store, and refused to entertain his complaints. He lost his income and had to report to the police station regularly.' 7 The Tribunal then went on to refer to its invitation of 14 April 2004 and the response from the applicant. Under the heading 'Findings and Reasons' the Tribunal said as follows: 'The applicant has made vague and unsubstantiated claims that he feared persecution as a Falun Gong adherent. He has not described how and when he joined and how he came to the adverse attention of the authorities. Without more I cannot accept that he is a Falun Gong practitioner and that he was targeted by the authorities for this reason. Moreover, he has not claimed that he had any profile in the organisation which, according to the independent evidence … would increase the chance of his being targeted. The Tribunal is not satisfied, on the evidence before It, that the applicant has a well- founded fear of persecution within the meaning of the Convention.' 8 The Tribunal then went on to say that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. It is obvious from the Tribunal's reasons that it did, in fact, give consideration to the very brief claims made by the applicant. The statement of 19 January 2004, to which I have already referred, contains the only claims made by the applicant. The Tribunal dealt with those claims and concluded that it was unable to accept them without some further substantiation from the applicant. 9 The applicant appeared today without legal assistance, however, he had the benefit of an interpreter. He said that he regretted not having accepted the Tribunal's invitation to attend the hearing. He made no submission in opposition to the contention on behalf of the Minister that the Tribunal had, in fact, dealt with his claims. Rather, he was concerned with what further avenues of appeal were open to him. It is patently obvious that the complaint made by the further amended application could not possibly succeed. 10 While on the face of the assertion made in the application there may be a cause of action disclosed, a consideration of the background indicates that the proceeding is frivolous. I consider that it should be dismissed summarily. The application was not supported by any evidence at all, other than the bundle of relevant documents filed by the Minister. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett J.