NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 (29 June 2005)

Last Updated: 4 July 2005

FEDERAL COURT OF AUSTRALIA

NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119

MIGRATION – summary disposal – ground of jurisdictional error asserted in application in circumstances where appellant had failed to appear before Tribunal – asserted ground plainly untenable

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 414(1)
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Court Rules O 20 r 2(1), O 52 r 10(2)(b)


NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1337
Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Décor Corporation v Dart Industries Incorporated [1991] FCA 655; (1991) 33 FCR 397 applied
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 (1999) 165 ALR 409
Niemann v Electronic Industries Limited [1978] VR 431 applied
Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152 (1999) 161 ALR 458
Re Luck [2003] HCA 70; (2003) 203 ALR 1 applied
Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4,184 referred to













NBGZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1373 OF 2004

GRAY, CONTI AND ALLSOP JJ
29 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1373 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	GRAY, CONTI AND ALLSOP JJ
DATE OF ORDER:	29 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of appeal filed herein be treated as an application for an enlargement of time in which to file and serve an application for leave to appeal and as an application for leave to appeal.

2. The said applications be dismissed.

3. The appellant, the applicant in the said applications, 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	NSD 1373 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, CONTI AND ALLSOP JJ
DATE:	29 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GRAY J

The nature and history of the proceeding

1 The central question in this proceeding is whether an application can be dismissed on the ground that it is frivolous, when it is acknowledged that the application may disclose a cause of action. The question arises in the context of what purported to be an appeal, but became an application for leave to appeal, from the judgment of a single judge of the Court in NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1337. It is convenient to refer to the applicant for leave to appeal as ‘the appellant’. The learned primary judge dismissed the appellant’s application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth), in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’), and ordered the appellant to pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’).

2 The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 14 January 2004. Six days later, he made an application for a protection visa, pursuant to the Migration Act 1958 (Cth) (‘the Migration Act’). Before the appellant could be granted a protection visa, a delegate of the Minister had to be satisfied that he had a well-founded fear of being persecuted, if he were to return to China, for reasons of race, religion, nationality, membership of a particular social group or political opinion. If the delegate were satisfied that there was a real chance that the appellant would suffer persecution for one of those reasons, he would be a person to whom Australia owed protection obligations, pursuant to the relevant international convention, and he would be entitled to the visa. The Minister’s delegate who dealt with the application was not so satisfied. On 10 February 2004, the delegate refused to grant a protection visa. The appellant applied to the Tribunal for review of that decision. On 23 April 2004, the Tribunal affirmed the decision not to grant a protection visa.

3 On 4 June 2004, the appellant applied to the Court. On 9 July 2004, the matter came before the primary judge for directions. His Honour gave leave to the Minister to file and serve a motion for summary dismissal of the proceeding. A notice of motion, seeking summary dismissal pursuant to O 20 r 2(1) of the Federal Court Rules was duly filed and served. Order 20 r 2(1) provides as follows:

‘Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

(a) no reasonable cause of action is disclosed:

(b) the proceeding is frivolous or vexatious; or

(c) the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.’

4 On 2 September 2004, the appellant filed a further amended application. Notwithstanding this, on 10 September 2004, his Honour gave the judgment from which the appellant now seeks to appeal.

5 On 20 September 2004, the appellant filed a notice of appeal. As the judgment of the primary judge was an interlocutory judgment, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) required that the appeal be by leave. The appellant was already outside the seven-day time limit for an application for leave to appeal, fixed by O 52 r 10(2)(b) of the Federal Court Rules. In the course of the hearing before the Full Court, the Minister consented to the matter being dealt with as if it were an application to enlarge the time fixed for applying for leave to appeal, and an application for leave to appeal.

The material before the Tribunal

6 The appellant’s original application for a protection visa was before the Tribunal. It included a statement, dated 19 January 2004, apparently signed by the appellant, in the following terms:

‘I am [the applicant] 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 [sic]. 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 [sic] 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 [sic] regularly. I dare not practise Falun Gong any more in China.’

7 The Tribunal did not have before it any further significant material in support of the appellant’s claim, because the appellant did not accept an invitation to attend a hearing before the Tribunal.

The Tribunal’s reasons

8 In its reasons for decision, under the heading ‘CLAIMS AND EVIDENCE’ the Tribunal summarised the appellant’s claim in the following terms:

‘The applicant has claimed to be a Falun Gong practitioner and would be [sic] 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.’

9 Under the heading ‘Background’, the Tribunal then referred to a quantity of information derived from sources other than the appellant, concerning the manner in which authorities in China deal with adherents of the Falun Gong movement. The material suggested that, since 2001, measures taken against Falun Gong practitioners included detention, re-education and state-sanctioned violence. The Tribunal found that reports indicated that Chinese authorities ‘are less interested in individual members practising alone than those actively propagating Falun Gong as a ‘core’ member [sic].’

10 Under the heading ‘FINDINGS AND REASONS’, the Tribunal said:

‘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 above, which I accept, 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.’

The appellant’s case at first instance

11 In his further amended application, the appellant included the following ground:

‘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.’

The primary judge’s reasons

12 At [8] of his reasons for judgment, the primary judge said:

‘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.’

13 At [9], his Honour described the course of the proceeding before him and said:

‘It is patently obvious that the complaint made by the further amended application could not possibly succeed.’

14 At [10], his Honour said:

‘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.’

15 His Honour then commented that the application was not supported by any evidence at all, other than the bundle of relevant documents filed by the Minister, by which I take his Honour to have meant the court book, which was also before the Full Court.

Summary dismissal and the meaning of ‘frivolous’

16 In Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, the High Court allowed an appeal from the summary dismissal of an action by the Supreme Court of Victoria, pursuant to a rule similar to O 20 r 2(1)(a) of the Federal Court Rules. At 92, O’Connor J said:

‘Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.’

17 At [99] – [100], Higgins J referred to the same rule of court and said:

‘This rule applies to a wider area of cases than the general power; and yet it has been held not to apply except in plain or obvious cases; and if there is a point of law that requires any serious discussion, it should be set down for argument: Hubbuck v. Wilkinson. The pleading must be "obviously frivolous or vexatious, or obviously unsustainable," if it is to be struck out (per Lindley L.J. in Attorney-General of the Duchy of Lancaster v. London and North Western Railway Co.). The pleading must be "so clearly frivolous that to put it forward would be an abuse of the process of the Court": Young v. Holloway.’ [Citations omitted]

18 In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91, Dixon J said:

‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’

19 In General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 – 129, Barwick CJ said:

‘The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".’

20 At 130, his Honour said:

‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.’

21 In Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152 (1999) 161 ALR 458, Nicholson J referred to O 20 r 2 of the Federal Court Rules and said at [24]:

‘A "reasonable cause of action" means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone. The terms "vexatious" and "frivolous" have been used interchangeably: The Atlantic Star [1974] AC 436 at 464-8. "Frivolous" has been held to be apt to describe proceedings in which the plaintiff’s claim is so obviously untenable that it cannot possibly succeed: Burton v Bairnsdale Shire [1908] HCA 57; (1908) 7 CLR 76 at 92. "Vexatious" has been held to be apt to describe an action which is a sham and which cannot possibly succeed: Willis v Earl Beauchamp (1886) 11 PD 59 at 63.’

22 In McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 (1999) 165 ALR 409 at [12] – [19], Weinberg J referred to a number of authorities on the subject. In his Honour’s view, the authorities from the United Kingdom:

‘confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.’

23 These authorities make it clear that, in any case in which summary dismissal of a proceeding is sought, the focus must be on whether the case is arguable, and not upon whether it is likely to succeed. Without an opportunity for full argument, the Court cannot determine properly that an argument open to the initiating party in the proceeding should fail. So long as the argument is open, a person bringing a case to court is entitled to have his or her day in court, and to a proper consideration of that case. For this reason, as the authorities show, a case cannot be dismissed as ‘frivolous’ if, on its face, there may be a cause of action disclosed (as his Honour suggested in the present case). There is no suggestion in any of the authorities that a proceeding can be termed ‘frivolous’ on a consideration of its ‘background’, whatever that may mean.

The appellant’s arguable case

24 In my view, there is an arguable case that the Tribunal could not have described the appellant’s claims as it did in the passage I have quoted in [10], unless it ignored the terms in which they were put. It was not true to say that the appellant had not described how and when he joined Falun Gong. In the second paragraph of his statement, quoted in [6], the appellant said that he was introduced by his friend. That is a statement as to how he joined. It is clear that the paragraph also contains a chronology. It is true that, apart from the mention of the year 1994, the chronology is short on dates, but the mention of that year itself provides a clue as to the time, in that the loss of the factory job and the involvement with Falun Gong appear to have preceded 1994. The Tribunal omitted these details from its summary of the appellant’s claims, quoted in [8].

25 The Tribunal described the appellant’s claim to fear persecution as ‘vague and unsubstantiated’. In fact, the appellant’s claims were specific: he was subject to arrest and detention in a police station in 2002; he was beaten at the police station because he refused to answer all questions related to Falun Gong; he was only released on answering questions; his store was closed by the authorities and he was deprived of his livelihood; and he was required to report regularly. As to whether these claims were ‘unsubstantiated’, it is difficult to know what the Tribunal meant. It is hard to know what form of substantiation, other than the assertion of the person himself, is possible in most cases of claims for persecution. The Tribunal appears to have meant that the claims should have been more detailed, when it said that ‘without more’ it could not accept that the appellant was a Falun Gong practitioner and was targeted by the authorities for that reason. (It is difficult to see why the Tribunal referred to the absence of a claim of any ‘profile in the organisation’ if the Tribunal truly was not satisfied that the appellant was not a Falun Gong practitioner. If he had nothing to do with Falun Gong, plainly he would have no profile within it. In any event, the relevance of the absence of a profile is unclear; none of the information to which the Tribunal referred appears to indicate that someone without a ‘profile’ was exempt from arrest, detention, re-education and state-sponsored violence. At the most, the information suggested that a person practising alone and not propagating Falun Gong was of lesser interest to the Chinese authorities.)

26 For these reasons, I am of the view that it is arguable, as the appellant asserted in his further amended application at first instance, that the Tribunal failed to address the claims he raised. It is arguable that it was not sufficient for the Tribunal simply to summarise those claims (to the extent that it did) in its reasons for decision. The Tribunal was obliged to deal with them. Its obligation to review the decision of the Minister’s delegate, pursuant to s 414(1) of the Migration Act, remained, even though the appellant had declined the invitation to attend a hearing. The Tribunal had no power to dismiss an application for review by reason of non-attendance. It is therefore arguable that the Tribunal’s failure to deal with the appellant’s claims, by its mischaracterisation of them, amounted to a failure to deal with the claim actually made, and therefore to jurisdictional error.

27 It is unnecessary to determine at this stage whether the argument on behalf of the appellant would succeed. It is not to the point to say that, on the material before it, the Tribunal was entitled to be not satisfied that the appellant was entitled to the visa he sought. If the Tribunal failed to exercise its jurisdiction according to law, the appellant’s application for review of the Minister’s delegate’s decision has not been dealt with. As the authorities to which I have referred show, at this stage it is enough to say that the case was arguable. In my view, it was.

Conclusion

28 I am of the view that the primary judge was in error in saying that it was obvious from the Tribunal’s reasons that it did, in fact, give consideration to the claims made by the appellant. In saying that, his Honour precluded the appellant from pursuing an argument open to him, that the Tribunal had not dealt with the claim he actually made. Further, in acknowledging that the further amended application may have disclosed a cause of action, but describing the proceeding as frivolous by reference to a consideration of its ‘background’, his Honour was also in error. If there were an arguable case disclosed, the proceeding could not have been characterised as ‘frivolous’, on the authorities to which I have referred. Even if his Honour took the view that the appellant’s argument was very likely to fail, that provided no ground for summary dismissal of the proceeding. The appellant did not need to place before the Court at first instance any further evidence, in order to make good his case. He needed only the statement of his claim and the Tribunal’s reasons, both of which were before the primary judge as part of the court book filed by the Minister’s representatives.

29 It follows that the appellant ought to succeed on his appeal. In my view, the time for applying for leave to appeal should be enlarged, so as to permit the appellant to apply for leave to appeal. Leave to appeal should be granted. The appeal should be allowed and the orders of the primary judge, made on 10 September 2004, should be set aside. The matter should be remitted to his Honour for consideration of the appellant’s case on the merits. Although the appellant is unrepresented, the Minister should be ordered to pay his costs, in case the appellant has incurred any out-of-pocket expenses for which he should be reimbursed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 28 June 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1373 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, CONTI AND ALLSOP JJ
DATE:	29 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CONTI J

Procedural background to the appellant’s purported appeal to the Full Federal Court

30 This is an application for leave to appeal from the decision and order of a single judge of this Court, made on 10 September 2004, whereby there was dismissed the appellant’s application for review of the decision of the Refugee Review Tribunal made on 23 April 2004, being a decision by way of affirmation of an earlier decision of the Minister’s delegate made on 10 February 2004 also adversely to the appellant.

31 The appellant filed a notice of appeal from the decision of the primary judge on 20 September 2004. The primary judge summarily dismissed the application for review pursuant to Order 20 r 2(1)(a) of the Federal Court Rules on the ground that the application was frivolous. For that reason, the judgment of the primary judge was interlocutory in nature: Re Luck [2003] HCA 70; (2003) 203 ALR 1. An appeal from an interlocutory judgment of this Court does not lie as of right; leave must first be obtained: Federal Court of Australia Act 1976 (Cth) s 24(1A). Furthermore, an application for leave needs to be made within seven days of the interlocutory judgment: Federal Court Rules O 52 r 10(2)(b). The appellant’s notice of appeal was filed outside the seven-day period mandated by the rules, and was in any event incorrect in form, not purporting to be an application for leave to appeal at all. Be that as it may, in spite of the notice of motion filed by the Minister on 13 October 2004 seeking dismissal of the appeal as incompetent, counsel for the Minister consented to the Court’s treatment of the notice of appeal as an application for leave to appeal. The issues remain whether the Court should exercise its power under Order 52 r 10(2)(b) to enlarge the period of time within which the appellant may apply for leave to appeal and if so, whether such leave should be granted.

32 In Décor Corporation v Dart Industries Incorporated [1991] FCA 655; (1991) 33 FCR 397 at 398-99, Sheppard, Burchett and Heerey JJ emphasised that the Court has a discretion whether to grant leave, and that guidance may be obtained in ‘the general run of cases’ from the considerations provided in the reasons for judgment in Niemann v Electronic Industries Limited [1978] VR 431. Their Honours further cited a passage in the reasons for judgment of Burchett J in Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4,184 at 4,186, which described the two major considerations, or ‘tests’, outlined in Niemann to be applied upon an application for leave. The first was ‘whether, in all the circumstances, the decision was attended with sufficient doubt to warrant its being reconsidered by the Full Court’ and the second was ‘whether substantial injustice would result if leave were refused, supposing the decision to be wrong’. Burchett J emphasised in Sharp that those two considerations – the sufficiency of doubt and the question of substantial injustice – ‘bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another’.

33 The grounds of appeal set out in the appellant’s notice of appeal were framed in unspecific terms as follows:

‘(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with the conduct for the purpose of making the decision were not observed.

(2) The decision involves error of law.’

34 Prior to the dismissal by the primary judge of the application for review, the appellant had filed in this Court the following purported initiating processes:

(i) an application made under s 39B of the Judiciary Act bearing the date 9 July 2004;

(ii) a so-called amended application bearing date 29 July 2004;

(iii) an amended application purportedly made under the Judiciary Act 1903 bearing date 2 September 2004.

None of those applications bore reference to any retainer by the appellant of a legal practitioner. All court appearances appear to have been conducted by the appellant in person with the assistance of a Mandarin interpreter.

35 The grounds for review of the Tribunal’s decision, as outlined by the appellant before the primary judge, were recorded at [3] by his Honour 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.’

36 In the context of his visa application submitted on 20 January 2004, the appellant provided a statement to the primary judge dated 19 January 2004 in the following terms:

‘I am [NBGZ] 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.’

37 On 14 April 2004 the Tribunal wrote to the appellant a letter commencing 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.’

The letter proceeded thereafter to refer to an enclosed form which invited the appellant to inform the Tribunal whether he would be attending the foreshadowed Tribunal hearing. However the appellant completed that form on 21 April 2004 to the effect that he would not be attending the Tribunal hearing.

38 The Tribunal’s reasons for decision included the following, appearing 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.’

After then referring to its invitation to attend and give oral evidence and the appellant’s negative response, the Tribunal found inter alia 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.’

39 In the reasons for judgment of the primary judge, observation was first made as follows:

‘[8] ... 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.’

40 Thereafter the primary judge added the following observations and reached the following conclusions:

‘[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.’

The appellant’s purported appeal to the Full Federal Court and the Minister’s submissions in response

41 Notwithstanding certain directions of the Court that he should do so, the appellant did not furnish to the Full Court any written outline of submissions. The written outline of submissions of the Minister provided to the Full Court referred to findings made adversely to the appellant by the Tribunal and the primary judge, and highlighted the following:

(i) the Tribunal’s conclusion that the appellant had made ‘vague and unsubstantiated claims’ and that ‘without more’ could not accept that the appellant was an adherent of Falun Gong or was targeted by the Chinese authorities for that reason;

(ii) the primary judge’s reasons for summary dismissal of the application for review, which involved the following findings (as paraphrased by counsel for the Minister):

‘(a) The Tribunal considered the applicant’s application on the papers as it was entitled to do once the applicant had declined the opportunity to attend the Tribunal hearing. With only the papers to consider, the Tribunal was unable to be satisfied on the material before it that the applicant had a well-founded fear of prosecution for a Convention reason.

(b) The applicant’s sole ground of review before Emmett J was that the Tribunal failed to exercise its jurisdiction by not addressing the claims raised by the applicant. His Honour reviewed the decision of the Tribunal and the material the Tribunal had before it and concluded: "The statement of 19 January 2004... 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".’

42 In light of those findings the Minister submitted as follows:

(i) the notice of appeal filed by the appellant was incompetent, since an application for leave to appeal from the interlocutory decision of the primary judge was required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth);

(ii) if the Court was minded to treat the notice of appeal as an application for leave to appeal, leave should be refused, in the light of the two purported grounds of appeal to which I have referred, since none of the criteria for the grant of leave to appeal, as articulated in Décor, had been identified by the appellant in his notice of appeal.

43 The reasons propounded by the Minister as to why the decision of the primary judge was not attended with doubt were framed in the following terms:

(i) the Tribunal had considered the appellant’s application on the papers, as it was entitled to do, once the appellant had declined the opportunity to attend the Tribunal hearing; with only the papers to consider, the Tribunal had been unable to be satisfied on the material before it that the appellant had a well-founded fear of prosecution for a Convention reason;

(ii) the appellant’s sole ground of review before the primary judge was that the Tribunal had failed to exercise its jurisdiction by not addressing the claims raised by the appellant; the primary judge reviewed the decision of the Tribunal and the material placed before it, and had concluded in the terms I have already referred to that the Tribunal had in fact considered those claims;

44 The Minister thereafter further submitted that a substantial injustice would not result from any refusal of the Full Court to grant leave, there being no substance in the appellant’s purported grounds of appeal. Moreover the primary judge had considered the specific grounds of review put forward by the appellant in his application for a protection visa, together with the conclusions of the Tribunal, and had determined that there was no merit in the grounds of review, and in particular, no error was identifiable on the part of the primary judge. In the event that leave was to be granted to appeal from the primary judge’s decision, the Minister submitted that the appeal should be dismissed, since the grounds for appeal framed in the notice of appeal were ‘generic catch-all grounds’ which had not specified any error on the part of the primary judge.

45 Prior to the hearing of the appeal, the pending appeal proceedings were listed by me for mention on 15 February 2005. The appellant appeared in person, having been notified by mail sent to an address 13 Amy Street Campsie of the listing of the appeal for mention. The source of my information as to that address was the notice of appeal filed by the appellant on 20 September 2004. Another of the purported initiating processes filed in the Court registry by or on behalf of the appellant disclosed the address ‘PO Box 522 Campsie NSW’; yet another disclosed the address ‘312 Beamish Street Campsie’.

46 When I enquired of the appellant in Court on 15 February 2005 as to whether he was in receipt of any legal advice in the context of the proceedings, he replied:

‘I used a migration agent who helped me before. Now I change to another agent.’

In answer to my question ‘[w]hat were those errors of law?’, the appellant replied ‘[a]ctually I didn’t receive any letter from anyone’. When I asked the appellant ‘... what is your present address’, he replied only that ‘I’ve got a PO box address’; in response to my further question ‘I don’t want your PO Box address, I want your true address’, the appellant responded ‘I can’t spell the address I live now. I used to live here but now I have moved’. In response to my further question ‘You can tell the interpreter in Chinese what your address is and she will tell me’, the appellant replied ‘I can’t read English because the name of that street is in English’.

The findings and conclusions of the Court

47 In my opinion, the findings and conclusions of the primary judge were soundly and correctly made and reached. It was open to the Tribunal to find and conclude that the appellant had made vague and unsubstantiated claims to the effect that he feared persecution as a Falun Gong adherent, and had come to the attention of the Chinese authorities. Given the vagaries of the appellant’s claims, the Tribunal was not obliged to draw out from the appellant particularity as to any further aspects of those claims, or in particular to the appellant having supposedly come to the attention of Chinese police authorities. It is not germane to point to the use of the expression ‘I cannot accept’ in the Tribunal’s conclusions and to suggest therefrom that the Tribunal had set the evidentiary bar too high. As the learned primary judge concluded, the Tribunal explained that in the absence of oral evidence from the appellant about the specific details of his alleged involvement in the Falun Gong movement, or his position with that movement, it was not ‘satisfied...that the appellant has a well-founded fear of persecution within the meaning of the Convention’. As counsel for the Minister rightly submitted, the appellant was required to obtain leave to appeal from the primary judge below, yet the appellant made no purported attempt to achieve the attainment of that necessary step. No conceivable, much less reasonable, basis was made out by the appellant, or even purportedly sought to be made out, on the part of the appellant, to justify the grant of such leave. Moreover his evident reluctance to disclose his present residential address did not assist to advance the genuineness of his present position.

48 In the case of the unsatisfactory legal processes pursued by visa applicants, albeit with the assistance of migration agents, as in the case of the present appellant, an obligatory task does not devolve upon decision-makers, whether delegates of the Minister of Tribunal members, to undertake the initiative of articulating or imputing definitive expression to refugee claims which may rightly be regarded as vague as well as otherwise unsubstantiated. The present circumstances exemplify the justification for that general observation. Thus as counsel for the Minister rightly submitted, in response to a question of Allsop J in the course of her address to the Full Court, it is not the function of the Tribunal to undertake at its own initiative the onerous task of investigating and establishing the prevailing situation in China as to the pursuit of Falun Gong practices, and the extent of present Chinese Government discouragement or suppression of those practices, merely upon the advancement by applicants of vague and unsubstantiated claims as to refugee status upon the footing of adherence or loyalty to those practices. Otherwise a reverse evidentiary onus would tend to be foisted upon the Tribunal merely upon the recitation of certain key phrases in an application for a protection visa. The circumstances involved in the present appeal tend to exemplify the need to give effect to that precept.

49 I would therefore uphold the Minister’s opposition to the grant of any enlargement of the time within which the appellant might seek leave to appeal from the decision and orders of the primary judge, notwithstanding the Minister’s indication that if so determined by the Full Court, the Minister would not stand in the way of the Court’s dispensation with the formalities required for any such course. In my opinion, the proceedings presently before the Full Court at the instance of the appellant are without merit, such as to warrant or justify any such course being set in train. The appellant should be ordered to pay the costs of the proceedings before the presently constituted Full Court.

50 Since my preparation of these reasons, I have had the benefit of reading the reasons in draft of both Gray and Allsop JJ. I agree with the reasons of Allsop J, and in particular with his Honour’s analysis as to why the primary judge correctly dismissed the appeal on the basis of frivolity, pursuant to Order 20 r 2(1)(b) of the Federal Court Rules.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti .

Associate:

Dated: 29 June 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1373 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, CONTI AND ALLSOP JJ
DATE:	29 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

ALLSOP J

51 The reasons for judgment of Conti J relieve me of the need to set out the history of this matter.

52 If the Refugee Review Tribunal (the Tribunal) comes to the view, apparently within the bounds of reason, that, having considered the papers, it is not satisfied that Australia owes protection obligations to an applicant such as the appellant, it is required to inform the applicant of that fact and invite him or her to a hearing to put his or her case.

53 That was the position here. Such an invitation was given.

54 The appellant did not take up that invitation.

55 The Tribunal remained unsatisfied of the relevant matter to which I have referred.

56 In those circumstances, unless the Tribunal somehow misdirected itself, or otherwise failed to comply with the Migration Act 1958 (Cth) (the Act) or other applicable law, ss 36 and 65 of the Act, read together, required the refusal of the visa.

57 The Tribunal expressed its reasons. It was submitted that these reasons reflect a failure to deal with a claim or the claims of the appellant. The primary judge said that the Tribunal gave consideration to the claims (that is, all the claims) of the appellant. I agree. There is no dispute but that the appellant provided one statement in support of his claims – of four paragraphs. It is plain from the text of the Tribunal’s reasons that it had regard to the claims of the appellant in his supporting statement. The second paragraph under the heading "Claims and Evidence" makes that plain. In the context of a failure to take up the invitation to explicate the claims, it was entirely legitimate to describe the claims as "vague and unsubstantiated". In the context in which the words were used, they do not betray any failure of the Tribunal to appreciate and take into account the claims (or any of them) of the (absent) applicant.

58 The statement by the Tribunal that the appellant had not described "how and when he joined and how he came to the adverse attention of the authorities" was clearly, from what follows in the reasons, a summary of the doubts entertained which caused the Tribunal to write to the appellant to invite him to a hearing. They betray no failure to attend to the claims of the appellant, which, from the balance of the reasons, were plainly taken into account.

59 In these circumstances, the application to this Court was plainly untenable.

60 The application asserted a formulated ground which, in terms, amounted to an assertion of a recognised head of jurisdictional error. That may be sufficient to avoid the operation of Order 20 rule 2(1)(a) as the basis for summary dismissal, that

no reasonable cause of action was disclosed.

61 Order 20 rule 2 is not, however, limited to applications or other documentation (whether by way of pleading or application), which do not, on their face, disclose assertions of recognised bases for relief. If, as here, the assertion of a recognised head of jurisdictional error is plainly untenable and unarguably doomed to fail, the written statement of a ground of jurisdictional error will not prevent summary disposal. It goes without saying that great care should be exercised in the exercise of this power. In circumstances where there is an assertion of a recognised head of jurisdictional error the proper basis or bases of the summary disposal of a claim, which is plainly untenable, is or are Order 20 rule 2(1)(b) or rule 2(1)(b) and (c). The primary judge relied on Order 20 rule 2(1)(b). It was open for him to do so.

62 No authority requires the grounds of Order 20 rule 2(1) to be read conjunctively.

63 Here, the Tribunal used language that it selected to describe the claims of the appellant that it plainly considered. It was unsatisfied (without assistance at a hearing, which assistance the appellant declined to give) of the necessary criterion that Australia owed protection obligations to the appellant. In circumstances where it was not satisfied of that criterion, it was obliged to refuse the visa.

64 In my view, the asserted ground of review was plainly untenable.

65 No error is disclosed in the primary judge’s approach. The last paragraph of his Honour’s reasons is only a reflection of his views (correct in my view) that the assertion of a ground which, in terms, may be the identification of some recognised head of jurisdictional error meant that the use of Order 20 rule 2(1)(a) was inappropriate. That did not make the assertion tenable. It was not. As an assertion, it was hopeless.

66 There has been no error revealed in the approach of the primary judge.

67 Like Conti J, I would refuse an enlargement of time in which to seek leave to appeal on the basis that that application was doomed to fail, the discretion of the primary judge not having miscarried.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 29 June 2005

The appellant appeared in person with the assistance of a Mandarin interpreter.
Counsel for the Respondent:	K Morgan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 March 2005
Date of Judgment:	29 June 2005