Hong v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 05 April 2019
• Neutral Citation: [2019] FCAFC 55
• Date: 05 April 2019

FEDERAL COURT OF AUSTRALIA

Hong v Minister for Immigration and Border Protection [2019] FCAFC 55

Appeal from:	Hong v Minister for Immigration and Border Protection [2018] FCA 1085
File number(s):	NSD 1435 of 2018
Judge(s):	LOGAN, BROMWICH AND WHEELAHAN JJ
Date of judgment:	5 April 2019
Catchwords:	MIGRATION – appeal from a decision of the Federal Court – where mandatory visa cancellation made pursuant to s 501(3A) of the Migration Act 1958 (Cth) – whether the primary judge erred in failing to find that the Tribunal failed to consider a claim made by the applicant – whether the alleged claim was sufficiently raised on the material, evidence and submissions before the Tribunal – whether the primary judge erred in failing to find that the Tribunal’s decision was legally unreasonable – no jurisdictional error identified – application dismissed.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 2A, s 24Z, s 32, s 33, s 34J, s 35, s 39, s 40, s 43 Migration Act 1958 (Cth) ss 476, 500, s 501CA
Cases cited:	Applicant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 Attorney-General (NSW) v Quin (1990) 170 CLR 1 AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 Benjamin v Repatriation Commission [2001] FCA 1879; 70 ALD 622 Boddington v British Transport Police [1999] 2 AC 143 Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 62 ALR 53 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 Dearman v Dearman (1908) 7 CLR 549 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496; 77 ALJR 1088 Fox v Percy [2003] HCA 22; 214 CLR 118 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Hospital Benefit Fund v Minister for Health (1992) 39 FCR 225 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 Jebb v Repatriation Commission (1988) 80 ALR 329 Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 54 FLR 334 Maioha v Minister for Immigration and Border Protection [2018] FCAFC 216 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 National Archives of Australia v Fernandes [2014] FCAFC 158; 233 FCR 478 Repatriation Commissioner v Warren [2008] FCAFC 64; 167 FCR 511 Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 The Hontestroom [1927] AC 37 Toia v Minister for Immigration and Citizenship (2009) 177 FCR 125 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Date of hearing:	11 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	78
Counsel for the Appellant:	Mr O Jones
Solicitor for the Appellant:	Dobbie And Devine Immigration Lawyers Pty Ltd
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 1435 of 2018
BETWEEN:	ZHOU HONG Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	LOGAN, BROMWICH AND WHEELAHAN JJ
DATE OF ORDER:	5 APRIL 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs, as assessed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1. I have had the advantage of reading in draft the joint reasons for judgment of Bromwich and Wheelahan JJ (joint judgment).

2. I regret that I am unable to share the conclusion of the other members of the Court as to the disposition of this appeal. For the reasons which follow, I would allow the appeal.

3. In expressing my reasons, I gratefully adopt the account of the background to this appeal and the summary of the issues, reasons of the learned primary judge and the submissions of the parties offered in the joint judgment. I repeat only so much of the same as is necessary to explain my reasons. In so doing, I adopt, for consistency, the abbreviations employed in the joint judgment.

The “evasiveness finding”

4. As to “the evasiveness finding”, I respectfully agree, for the reasons given in the joint judgment, that there is no merit in the appellant’s submission that the Tribunal’s decision on the review was unreasonable, because it was based on an unreasonable conclusion that the appellant was evasive in her evidence.

The Falun Gong point

5. Ever since Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov), a plethora of cases at intermediate appellate level have expounded upon the subject of when an emanation of the executive undertaking the review on the merits of an administrative decision has a duty to consider particular claims and arguments made by an applicant. These cases, which notably include AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (AYY17), hold that an administrative review body such as the Tribunal only has a duty to consider such of an applicant’s claims as are the subject of clearly articulated argument, relying on established facts or clearly emerge from the materials before the Tribunal. That body of intermediate appellate authority is rehearsed in the joint judgment.

6. I prefer to approach the merits of the Falun Gong point via a path which commences with the terms of the Act and then proceeds by reference to Dranichnikov and other authorities at ultimate appellate level.

7. In this case, the source of the Tribunal’s jurisdiction was s 500(1)(ba) of the Act. That conferred on the Tribunal jurisdiction to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. That conferral adopted a model the constitutional propriety of which was affirmed by the Judicial Committee in Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR...