Hong v Minister for Immigration and Border Protection & Anor [2019] HCATrans 230 (15 November 2019)

Last Updated: 18 November 2019

[2019] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S134 of 2019

B e t w e e n -

ZHOU HONG

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2019, AT 11.44 AM

Copyright in the High Court of Australia
MR D.H. GODWIN: May it please the Court, I appear with my learned friend, MR T.J. DAVIE, for the applicant.

MR G.J. JOHNSON: If the Court please, I appear for the first respondent. (instructed by MinterEllison)

KEANE J: Mr Godwin.

MR GODWIN: Thank you, your Honours. Your Honours, the first step that the applicant will need to ‑ or the first hurdle that we will have to get over, is to convince your Honours that the majority were wrong to say that the Falun Gong matter was not maintained by the applicant in this case before the Tribunal, and that the majority’s reliance on the procedure in the Tribunal was misplaced to come to the conclusion that it was not maintained.

The starting point, we say, is the provisions of the Act, and that is the section 501CA(3)(b) invitation where in the Falun Gong matter was raised it was in response to that invitation. Now, I identified to the Court by an email yesterday that there has been a recent ‑ ‑ ‑

KEANE J: Yes.

MR GODWIN: ‑ ‑ ‑ five‑judge decision in the Full Federal Court, which has, I think, settled the appropriate standard by which you test whether something has to be taken in consideration that forms part of the representations, and we ‑ ‑ ‑

KEANE J: This is Minister for Home Affairs v Omar [2019] FCAFC 188.

MR GODWIN: Yes, your Honour. I was not intending to take your Honour to it other than to say that there is now a unified voice coming from the intermediate appellate level on this issue, so ‑ ‑ ‑

KEANE J: It was, of course, a case where it was common ground that, where a significant and substantial representation of a claim was not dealt with, then there is error, the case itself does not help much, but when the problem is whether there was a substantial claim maintained. And that is really the difference between the majority and the minority in the Full Court in this case, is the majority view was that the claim, the Falun Gong claim, was not actually maintained.

MR GODWIN: Yes, your Honour, I am indebted to your Honour, because that does simplify the way this is considered, you do not have to worry about what appropriate standard is, because it is a question ‑ ‑ ‑

GORDON J: You have got to overcome the first hurdle.

MR GODWIN: Yes, got to get over this first hurdle.

GORDON J: Is it the position that the representation, to the extent it is made, is set out from 39 to 40 of the application book? So that was what was set out in the 501 ‑ ‑ ‑

MR GODWIN: Yes, your Honour. So it is part of the representations, and it is made in the form that is sent to the applicant, and that form itself is structured in such a way as to reflect what the Ministerial Direction No. 65 provides are the matters that are to be taken into account in considering whether to revoke someone’s ‑ the cancellation of their visa.

And so that form has followed the direction, and one of the things in it is, what are the impediments to removal? And it is the applicant’s answer to that question that provided the Falun Gong matter. So it is not peripheral at all, it is what she said centrally was the matter that was the impediment to her going back to China. Now, in ‑ ‑ ‑

KEANE J: Well, that is putting it a little highly, given that what she did say in detail was her concern that she would have difficulty getting employment as a teacher, given the years of absence.

MR GODWIN: And there were other matters.

KEANE J: And, without reference to any suggestion that that might in some way be exacerbated by a Falun Gong connection.

GORDON J: I think the problem is, to pick up what Justice Keane is putting to you, you have this in the representation letter. The next step is really the Tribunal, where it is not set out in a statement of facts, issues and contentions, which seeks to really confine the hearing before the Tribunal. She is given the opportunity to comment before the Tribunal, which is what is set out at 41, and it is not raised again there. Is that not the difficulty?

MR GODWIN: Well, your Honour, the way we would put it to the Court is that, if you compare that situation to the situation in this Court’s judgment in Uelese, it is very similar. There was nothing said by the applicant in his facts and contentions, or in his submissions, about his other two children. But because the ministerial direction required the decision‑maker to have regard to the interest of children, that overcame that deficiency.

And we say here there is the same set‑up as the ministerial direction, plus there is also this requirement to have regard to the representations on top of the ministerial directions. So there are two levels of mandating that this information be considered, notwithstanding that it is not articulated again at the Tribunal level. It was not resiled from by the applicant in her evidence. It was not put to her that she was not pressing that matter in her evidence.

KEANE J: Well, I mean, she was given the opportunity to say what she wanted to say, and did not say anything about it.

MR GODWIN: But in the circumstances where it is being put ‑ the question has been put to her, is everything you have said in your representations true, and she has said, yes, it is.

GORDON J: Can I just take you to 28? So even if you accept all of that, you then have got her represented before the Tribunal, and the Full Court, or the judge says:

no submissions at all were made before the Tribunal by the applicant’s then solicitor about this topic.

There is no weight put on it. There is no suggestion that it is even still a relevant factor.

MR GODWIN: That is the same situation ‑ ‑ ‑

GORDON J: Would you not expect the counsel, or the representation, to raise it?

MR GODWIN: I mean, if the Full Court in its ‑ the majority in its judgment do list about six different cases where courts have said, just because counsel in their submissions have not raised an issue does not mean that the Tribunal does not have to consider it, and it is a statutory obligation for it to have regard to the representations.

KEANE J: But there does come a point at which the bar would be set at a point which would make it very, very difficult for the Tribunal, where ‑ that is to say, to know whether a particular point is being urged or not, and whether there is a substantial claim being made about whether this is a substantial claim being made that the Tribunal needs to deal with. And is not the difficulty here that, in the end, the question is whether the majority was right in concluding that the claim was not actually in fact being maintained, or whether Justice Logan was right in concluding that there was just enough there to say that the claim was being maintained?

If that is the contest, is it not just a question of fact, if you like, impression, as to the application of the principle that you are urging, that is to say, the claims must be addressed? Is it not just a question of fact as to whether the claim has been maintained or not? And that is really what we are dealing with.

MR GODWIN: Well, your Honour, I think, with respect I think your Honour answered your own question at the start by saying, is it not difficult for the Tribunal to know where to draw the line. And we say this is a good vehicle to tell the Tribunal where to draw the line in terms of what it has to consider, given the fact of the ministerial direction, the fact that this particular form followed that direction to provide the information that the Tribunal was required to consider, given the fact that it was then adopted in the applicant’s evidence.

It is not a peripheral matter, we say. Sure it is that the legal adviser did not put it forward in his submissions at the end, but that is not the end of the story, and even the majority decision, as I say, referred to a number of different cases that have said that is not the end of the story.

GORDON J: Are the principles in relation to that ‑ that is, the way in which you determine whether or not it has been maintained or not ‑ set out in paragraph 34 on page 43, is there anything wrong with those principles? I mean, are they not well established now?

MR GODWIN: There is an interaction with the ministerial direction and with the statute which puts a bit of a gloss on this particular matter because there is a focus. Both those things, the ministerial direction and the representation requirement, provide a focus on what needs to be considered, so it is not just a general, what claims have been articulated, there is a specific inquiry that has to be made by the Tribunal. So to that extent, the refugee cases which talk about claims, which could be anything, generically, in terms of the world and what might cause a fear of harm, are not directly transferrable to the facts of this case, in any event.

If we do get over the first hurdle, then there is an interesting question for the Court about materiality in the circumstances of this case, where you have a matter which is a statement of substantive fact by the applicant, it is not a corroborating matter, it is a claim of something that has actually occurred to her. Can a court, on appeal, in exercising the question of materiality, say, well, not like SZMTA where there is already ‑ the Tribunal has rejected all the equivalent evidence, so you can say, well, yes, the Tribunal is going to reject that as well, but in this case it has not even addressed this issue and it is just a statement of fact.

Now, sure it is, the majority say, well, there is not much to support it, and it looks equivocal to us, but that is the fact‑finding function of the Tribunal, not of the Court, and that, we say, will provide a bright line for the
distinction between where something as a matter of practical reality could make a difference or not in terms of how far the Court can go. Your Honours, unless there are any other questions, that is the application.

KEANE J: Thanks, Mr Godwin. We need not trouble you, Mr Johnson.

The application does not raise an issue of principle that would warrant the grant of special leave. Special leave is refused with costs.

I should say, notwithstanding the outcome, the Court is very grateful, Mr Godwin and Mr Davie, for the assistance that you have provided to the Court pro bono.

MR GODWIN: Thank you, your Honour.

AT 11.56 AM THE MATTER WAS CONCLUDED