FEDERAL COURT OF AUSTRALIA

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

ORDERS

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 530. Paraphrasing for present relevance an observation made, at 544 – 545, of the Board of Review in that case, the Tribunal appears to be in the nature of administrative machinery to which an applicant can resort to have his contentions reconsidered. It does not exercise judicial powers but is merely in the same position as the delegate of the Minister himself. It is another administrative tribunal which is reviewing the determination of the delegate. This understanding can be seen to prevail to this day in the observation made in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at 1127, [18] in respect of a like jurisdiction once exercised by the Refugee Review Tribunal that its “core function” is to “review the decision”. The same may be said of the jurisdiction exercised by the Tribunal under s 500 of the Act.

8    The Tribunal’s role is to review the decision, not the reasons for that decision. Necessarily, given the very nature of the Tribunal’s function, the discharge of that function is dictated by the statutory context in which the Tribunal comes to undertake its review in place of the other officer of the Executive, here the delegate, who made the decision. The delegate was acting under s 501CA(4) of the Act, which provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

9    The “representations” referred to in s 501CA(4)(a) of the Act are those made pursuant to s 501CA(3)(b) by the person whose visa has been cancelled in response to the invitation extended to that person, “to make representations to the Minister … about revocation of the original decision”. Necessarily, the representations made by the person are, for the purposes of the exercise of the discretion conferred on the Minister and his delegates by s 501CA(4) of the Act, a relevant consideration in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

10    In Dranichnikov, the “relevant consideration” was the claim as made and later developed in submissions by Mr Dranichnikov under the Act for a protection visa. It was that claim which was the subject of the decision under review. By majority, the High Court found that the Refugee Review Tribunal had failed to deal with the claim as made. Of the majority, Gummow and Callinan JJ, at 1092, [25] (Hayne J at 1102, [95] agreeing) characterised this failure not just as a failure to accord natural justice but also as a constructive failure on the part of that tribunal to exercise the review jurisdiction then consigned to it under the Act. It was the latter of these flaws which the remaining member of the majority, Kirby J (at 1101, [88] – [89]) considered to have been made out by the tribunal’s failure to deal with the claim as made.

11    Later cases in the High Court where jurisdictional error has been found in a failure to deal with a claim as made and thus in a failure to exercise the statutory function of review include Applicant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 and Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387. This type of constructive failure to exercise the consigned review jurisdiction is now frequently termed a failure to deal with an “integer” of the claim.

12    In the present case, the appellant made representations (“Personal Circumstances Form” dated 5 April 2017) in accordance with the invitation extended to her. These representations were not gratuitous but made in fulfilment of an entitlement conferred by the Act. They formed the basis upon which she submitted to the delegate that the delegate should be satisfied that there was, in terms of s 501CA(4)(b)(ii), another reason why the discretion should be exercised to revoke the cancellation decision. The appellant’s claim that it was an “Impediment to Return” because, when in China, she was helping people from an “organisation of social justice” called “Falung Gong [sic]” formed part of the representations which she made.

13    The representations made by the appellant did not, and could not, given the very nature of the review function of the Tribunal, lose their character of a relevant consideration just by virtue of the fact that the appellant had invoked the Tribunal’s jurisdiction. That is not to say that it was impossible for the appellant, in the course of the review, to signify that she abandoned a particular “integer” of the statutory representations which she had made. In Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, Davies J, referring to the role of the Administrative Appeals Tribunal in respect of the review of decisions concerning veterans’ entitlements stated:

… [T]he general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal’s function as part of that continuum …

The provision in the general practice of the Tribunal, followed in the present case, for the filing and exchange of statements of facts, issues and contentions has, as one of its aims, the identification by each party of those issues of fact and law which remain for the Tribunal to decide in the exercise of its review function. That was an opportunity for the appellant, if she had wished, to modify by abandonment an integer of her representations.

14    The appellant, who had the benefit of representation before the Tribunal, made no reference to the Falun Gong integer of her representations in her statement of facts, issues and contentions but neither did she expressly abandon that claim in that statement. She never expressly abandoned that claim at any stage prior to the hearing conducted by the Tribunal.

15    In her evidence in chief at the hearing, the appellant was expressly asked about, and expressly affirmed, the truth of the statements made in her representations. Necessarily, for there was no qualification in the answer which she gave, this was, materially, an affirmation of her Falun Gong claim. The affirmation had both a legal and an evidentiary dimension. The legal dimension was the content of the representations which were a relevant consideration for the delegate remained the same for the Tribunal exercising its review function in the delegate’s place. The evidentiary content was that the appellant affirmed that she had, during her time in China, undertaken the helping of people from the “organisation of social justice called Falong [sic] Gong”. There was further evidentiary content in her assertion that she had been told not to do this and that she may never get a job on return to China if her helping activities were used against her.

16    True it is that the appellant did not later refer to this particular claim in response to a question which would have admitted of such a response but neither was it ever expressly put to her in cross-examination that her Falun Gong claim as expressed in her representations was no longer a concern or was just false.

17    The Tribunal made no mention whatsoever of the Falun Gong claim in its reasons.

18    In these circumstances, it appears to me that the Tribunal has constructively failed to exercise the review jurisdiction consigned to it in the same way as jurisdictional error was found by the majority in Dranichnikov. Indeed, even the dissenting judge in that case, Gleeson CJ, did not differ from the majority in terms of principle, only with whether a failure was raised on the facts.

19    Had the appellant not affirmed in evidence before the Tribunal the content of her representations, the Tribunal’s failure might have been characterised as an error which did not go to jurisdiction. By that I mean that, even though the Tribunal was obliged to consider the representations, which relevantly included the Falun Gong claim, that error would not cross the “threshold of materiality”: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 (Hossain), at 788, [29] per Kiefel CJ, Gageler and Keane JJ. That would be because in circumstances where that claim had neither featured in the appellant’s statement of facts, issues and contentions and other pre-hearing correspondence with the Tribunal nor formed part of her evidence before the Tribunal, the failure to refer to the Falun Gong claim would not be material.

20    The position is different where compliance with the particular statutory requirement could have resulted in the making of a different decision: Hossain, at [2] and [31]; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. Only then would there be an error which was material and thus jurisdictional: Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [23].

21    Had the Tribunal addressed the claim and the evidence and accepted the evidence, the claim as evidenced was capable of supplying “another reason” why the cancellation decision should be revoked.

22    Given the limited role of a court exercising a judicial review jurisdiction, the reaching of a conclusion that an applicant for a constitutional writ or its equivalent has not been deprived of the possibility of a successful outcome calls for an exercise of principled restraint by the Court, lest the Court transgress impermissibly into the realm of merits review: Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35-36 per Brennan J. In this particular case, it is tempting, given the permissible conclusion which the Tribunal reached in relation to the appellant’s evasiveness in her answer about weapons, to conclude that this same conclusion would have been reached about the Falun Gong claim, based on her bare affirmation of it but later failure to make reference to it when opportunity arose. But it is to be remembered, too, that the appellant was illiterate in English and giving her evidence via an interpreter. Further, demonstrably from its reasons, the Tribunal has just not addressed the Falun Gong claim at all. It seems to me that the addressing of the Falun Gong claim and the reaching of a conclusion as to the credibility of the appellant in relation to that claim is a matter for the Tribunal in the discharge of its merits review function, not for the Court. The appellant has been deprived of the possibility of a successful outcome. She is therefore entitled to an order in the nature of certiorari quashing the Tribunal’s decision and an order remitting the matter to the Tribunal for hearing according to law.

23    The observation made by Gummow and Callinan JJ in Dranichnikov at 1092, [24] that to “fail to respond to a substantial clearly articulated argument relying upon established facts was at least to fail to afford Mr Dranichnikov natural justice” has subsequently been much remarked upon in judgments of this Court, including those to which reference is made in the joint judgment. In my respectful view, that statement needs to be considered against the factual context against which it was made. The “argument” to which reference is made in the statement was not just that put in the claim as made in the visa application but as the claim was developed in submissions to the delegate and to the Tribunal. There is also much, in my view, which lies behind the qualification, “at least” in the observation made by Gummow and Callinan JJ. Where the “clearly articulated argument” is found in a claim which is, for the purposes of the making of the decision, a “relevant consideration”, then jurisdictional error might also be found in a failure to take that consideration into account. The characterisation of constructive failure to exercise jurisdiction would also be open. That characterisation was an attractive one in Dranichnikov because of the way in which the then s 476 of the Act was cast.

24    The jurisdictional error here might be characterised in a number of different ways – a failure to afford natural justice, a failure to take into account a relevant consideration and a constructive failure to exercise the review jurisdiction consigned to the Tribunal by the Act. That provokes the thought that the case is an exemplar of the following observation made by Lord Irvine of Lairg LC (with whom Lord Slynn of Hadley in this regard and Lord Hoffmann agreed) in Boddington v British Transport Police [1999] 2 AC 143, at 152:

Challenge to the lawfulness of subordinate legislation or administrative decisions and acts may take many forms, compendiously grouped by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 under the headings of illegality, procedural impropriety and irrationality. Categorisation of types of challenge assists in an orderly exposition of the principles underlying our developing public law. But these are not watertight compartments because the various grounds for judicial review run together. The exercise of a power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result. The failure to grant a person affected by a decision a hearing, in breach of principles of procedural fairness, may result in a failure to take into account relevant considerations.

Associate:    

Dated:    5 April 2019

REASONS FOR JUDGMENT

BROMWICH AND WHEELAHAN JJ:

Background

25    On 18 November 2016, the appellant was convicted in the District Court of New South Wales of an offence under the Firearms Act 1996 (NSW) relating to possession of prohibited firearms without a permit for which she was sentenced to a term of imprisonment of two years with a non-parole period of 12 months. The appellant was also convicted of an offence under the Customs Act 1901 (Cth) relating to the intentional importation of goods without the requisite approval being obtained, for which she was sentenced to a term of imprisonment of 12 months.

26    The appellant is a citizen of the People’s Republic of China. At the time of her convictions, she was the holder of a Class BC Subclass 100 Spouse visa. On 29 March 2017, a delegate of the Minister cancelled the appellant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the grounds that, by reason of her convictions, the appellant had a substantial criminal record, and that she was then serving a term of imprisonment.

27    On 5 April 2017, the appellant made representations seeking a revocation of the cancellation of her visa pursuant to s 501CA(4) of the Act. In making her representations the appellant completed a “Personal Circumstances Form” dated 5 April 2017 in which she referred to a range of considerations, including a claim that in China she was helping people from an “organisation of social justice” called “Falun Gong”. This claim was made in answer to a question in a form in a section headed, “Impediments to Return”. The form posed the question, “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” The appellant placed an “X” in the box indicating “Yes”. The appellant then stated in answer to a question that she describe the concerns –

Before I left I was helping people from organisation of social justice called Falong [sic] Gong. Only few times but I was told not to do because I may loose [sic] my job if I continue. If someone use this against me I may never find a job.

28    This statement (the Falun Gong point) was referred to by the delegate in the reasons for decision –

In China she was helping people from organisation of social justice called ‘Falong Gong’. She states that a few times she was told not to because she may lose her job if someone used it against her. She is will [sic] not be able to return to teaching.

29    The delegate found that the appellant would face some hardship in China, but found that the hardship would diminish over time and that the appellant would establish herself and maintain a living standard equivalent to that of other Chinese citizens. The delegate decided not to revoke the decision to cancel the appellant’s visa because she represented an unacceptable risk to the Australian community and that the protection of the Australian community outweighed other countervailing considerations.

30    The appellant sought review by the Administrative Appeals Tribunal of the delegate’s decision not to revoke the cancellation of her visa. At the Tribunal, the appellant and the Minister were represented by legal practitioners (not by counsel who appeared before this Court). The parties filed statements of facts, issues and contentions prepared by their legal practitioners. A hearing before the Tribunal took place on 15 November 2017. The appellant gave evidence through an interpreter, and was examined, cross-examined, and re-examined. The appellant’s son and husband also gave evidence. The appellant gave the following evidence-in-chief in relation to the form referred to in [27] above –

SENIOR MEMBER: Did she fill out or did somebody fill it out for her?

MR TURNER: I think we're getting to that?

INTERPRETER: Yes, I did, but some of the documents, due to my language deficiency, I asked my husband and my friend helped me doing that.

MR TURNER: Thank you. Have you looked at that document of recent times?

INTERPRETER: Yes.

MR TURNER: Do you understand what it says?

INTERPRETER: Basically.

MR TURNER: Do you say that everything in that document is true?

INTERPRETER: Yes

31    The appellant was asked in evidence-in-chief specifically about difficulties she believed she would face if she went back to China –

MR TURNER: If you had to go back to China do you believe you would have any difficulties?

INTERPRETER: Yes, and lots of them.

MR TURNER: Could you tell us about them, please?

INTERPRETER: First of all, now I'm not really fit, healthy wise, and I used to work as a teacher in China, for 25 years, if I'm now sent back I've no way to work as a teacher anymore.

MR TURNER: You mentioned you're not really healthy now, what do you suffer from?

INTERPRETER: Yes, multiple issues here indeed. I'm suffering from third degree, so highest degree (indistinct), so third degree of lowering of the womb, I understand this the worst degree that ever can get in the diabetics and also I have iron deficiency. I rely on iron pills, five to six pills a day, to maintain my iron level. Also the blood fat problem is an issue for me as well

32    The appellant was cross-examined before the Tribunal in relation to returning to work in China as a teacher –

MR DENNIS: You’d previously had work in China, is that right?

INTERPRETER: Twenty-five years, yes, as a teacher.

MR DENNIS: Do you think you would be able to go back to that job if you went to China?

INTERPRETER: No, impossible - impossible - because I've already quit my profession.

MR DENNIS: Why would it be impossible to get another job?

INTERPRETER: You see, because of my womb issues and even as a teacher, it was very, very hard for me to stand in front of class for 45 minutes, let alone other jobs.

33    At the conclusion of evidence, the legal practitioners for the appellant and the Minister addressed the Tribunal.

34    No reference was made to the Falun Gong point by the appellant or her legal practitioner in the course of the hearing or in her statement of facts, issues, and contentions.

35    On 27 November 2017, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the visa. In doing so, the Tribunal referred to the fact that the appellant claimed that she could no longer work as a teacher because she could not stand for 45 minutes in front of a class, and stated at [65]-[69] of its reasons –

65.    The Applicant taught music in China for 25 years. She claimed she could no longer do so because she cannot stand for 45 minutes in front of a class.

66.    The Tribunal finds that there are no cultural or language barriers facing the Applicant is [sic] she returns to China, having lived there for 43 years of her life and worked as a teacher for 25 years.

67.    Her mother, sister and brother live in China. She has friends in China. She said that they will not give her money, that her brother has a big role looking after their mother, and that her sister will be coming to Australia because her child is here. She also claimed that her sister was supporting her mother financially and would not assist her. The Tribunal takes into account that the evidence shows that she will have the support of her husband if she returns because he will go with her, although they both claim he will not be able to earn a living there.

68.    The Tribunal accepts that the Applicant will face some hardship on return to China, including missing her son and his family. It gives little weight to her loss of association with the choir here or activities in nursing homes. She is well-equipped to undertake such activities in China.

69.    The Tribunal does not accept that the difficulties are as great as the Applicant claims. She was able to assist her husband in a business activity in Australia using her Chinese language skills. The Pre-Sentence Report dated 17 October 2016 stated that she had provided her Australian Business Register information for verification of business registration. She worked at the weekend markets with him. She has those business and language skills as well as her teaching skills. The Tribunal finds that any hardship will diminish with time and that she is well-equipped to re-establish herself in China with the support of her husband, family and friends, and will attain a living standard at least that of other Chinese citizens.

36    On 11 December 2017, the appellant filed an originating application seeking review of the Tribunal’s decision seeking relief in the nature of constitutional writs in the exercise of the Court’s original jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth), and preserved by s 476A(1)(b) of the Act. On 20 July 2018, the primary judge dismissed the application.

37    The appellant now appeals the dismissal by the primary judge of her application for judicial review of the Tribunal’s decision. Although the notice of appeal contains a number of grounds, counsel for the appellant limited the grounds of appeal to two grounds which may be summarised as follows. First, the primary judge erred in not upholding the appellant’s submission that the Tribunal had not given proper, genuine and realistic consideration to the Falun Gong point. Secondly, that the primary judge erred in not upholding the appellant’s claim that a finding by the Tribunal that the appellant was evasive when giving evidence was legally unreasonable (the evasiveness finding).

The primary judge’s reasons

38    The primary judge grouped the appellant’s grounds seeking review of the Tribunal’s decision into four categories. The Falun Gong point was the subject of one category, and the credit finding was considered within a category relating to legal unreasonableness.

The Falun Gong point

39    It was accepted that the Tribunal did not make a specific finding in relation to the Falun Gong point. However, at [34] to [41] the primary judge rejected the appellant’s claim that the Tribunal fell into error in not making a specific finding with respect to the appellant’s reliance on helping people associated with Falun Gong. The primary judge referred to the principles identified by the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18] relating to the duty of the Tribunal to consider claims and issues arising from material before it, and rejected the appellant’s claim for four reasons which, in summary, were as follows.

40    First, although the appellant was provided with an adequate opportunity to make her case before the Tribunal, she did not raise the Falun Gong point before the Tribunal as something that was being maintained.

41    Second, although the Falun Gong point was referred to in the appellant’s Personal Circumstances Form, it was never referred to or persisted in by the appellant’s legal practitioner before the Tribunal, and without the point being expressly referred to or advanced at the hearing before the Tribunal, and without evidence being given to support any such claim, it could not be said that the appellant had made an articulated argument, such that the Tribunal erred in failing to make a specific finding. Further, the primary judge considered that the Falun Gong point rose no higher than an unarticulated assertion unsupported by any evidence upon which its factual underpinning could be established.

42    Third, the appellant had been given the opportunity to give evidence before the Tribunal about her job prospects in China. In giving that evidence, the appellant referred to some health issues, but failed to make any mention of the Falun Gong point.

43    Fourth, the appellant had been legally represented before the Tribunal and there was no reason whatsoever to doubt the competence of her legal practitioner or to question that he was acting appropriately, on instructions, in making forensic decisions as to the conduct of the case. The appellant’s legal practitioner advanced contentions and evidence in respect of the issue that she would have difficulty finding work in China based upon her age and health condition, and there was nothing to suggest that advancing the claims in this way did not reflect a rational forensic choice. In relation to the relevance of legal representation, the primary judge referred to the decision of the Full Court in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37] (emphasis added by the primary judge) –

We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.

The evasiveness finding

44    At [37] of its reasons, the Tribunal stated that the appellant was evasive when giving evidence. The Tribunal continued –

For example, when asked whether she knew about the knives, sling shots and other weapons, she said the bullets were made of plastic. That answer was not a response to the question.

45    Before the primary judge, the appellant relied upon the transcript of the appellant’s evidence as follows –

MR DENNIS: Ms Zhou, you said that in China it does not appear to be illegal. Can you explain what you mean by that?

INTERPRETER: Because they’re not true guns; because I saw people playing with these, both adults and kids.

MR DENNIS: Ms Zhou, you know that there was more than just guns; there were knives and sling shots and other weapons?

INTERPRETER: Yes. Those bullets are made of plastic.

46    The appellant claimed before the primary judge that the Tribunal’s finding that the appellant was evasive was legally unreasonable because the appellant had in fact given an affirmative answer to the question asked. The primary judge rejected this claim because, while the literal recording reflected in the transcript identified that the applicant said “yes” in response to the question asked, the supplementary sentence “[t]hose bullets are made of plastic” did not reflect an answer that was directly responsive to the question posed. The primary judge also considered that the Tribunal had the considerable benefit of observing the applicant give evidence before it, and stated that, as anyone experienced in reviewing transcript knows, the written word itself often gives a less than complete or definitive reflection of the responsiveness of a witness.

The appellant’s submissions on appeal

The appellant’s submissions in relation to the Falun Gong point

47    Counsel for the appellant made two submissions in support of the ground of appeal relating to the Falun Gong point. First, counsel submitted that the primary judge erred in applying to the present case the principles identified in the Full Court’s decision in AYY17. Second, counsel submitted that even if the principles in AYY17 were applicable to the present case, the primary judge’s application of AYY17 should not be upheld.

48    At [34] of his reasons for judgment, the primary judge set out some extracts from [18] of the Full Court’s decision in AYY17. Because the appellant submits that the principles identified in AYY17 are inapplicable to the present case, it is desirable to include the context of those extracts, so we shall set out the whole of [18] –

It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

49    Counsel for the appellant submitted that the principles identified in AYY17 were not applicable to the present case, because AYY17 concerned a review of the refusal of a protection visa. Counsel for the appellant submitted that the principles identified in AYY17 go to which matters are required to be considered as claims in support of the grant of a protection visa on the basis that international non-refoulement obligations have been engaged. Conversely, the context of the present case was whether there was “another reason” within the meaning of s 501CA(4)(b)(ii) of the Act to revoke the cancellation of the appellant’s visa. Counsel submitted that it is appropriate in conducting a merits review of a refusal of a protection visa that the Tribunal be obliged to consider claims regarding non-refoulement only where they have been substantially developed in argument or have an established factual foundation. That is because the task of the Tribunal is clearly defined and without discretion (see: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [38]-[41] and the cases cited therein). Counsel submitted that the task of the Tribunal under s 501CA(4)(b)(ii) of the Act is broader, and is discretionary, such that there are few, if any, matters which necessarily fall within or outside the statutory criterion. Counsel submitted that the guidance in AYY17 is too demanding to be applied in the context of s 501CA(4)(b)(ii) of the Act.

50    Counsel for the appellant referred to the decision of Flick J in Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609, which was referred to in AYY17 at [18]. In Kasupene Flick J stated at [19]-[21] in the context of unrepresented parties before the Tribunal –

19    … The less important the available evidence or an available submission may be, the lesser may be the necessity for either the Tribunal or a respondent to address the issue. The more important and the more centrally relevant available evidence or an available submission may be to the decision to be made, the greater may be the necessity for the issue to be addressed and resolved — even if not otherwise addressed by an unrepresented party. Where the line is to be drawn will obviously depend upon all of the circumstances of an individual case.

20    But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1. It was said there that a “judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal”: at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50], 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration & Citizenship [2007] FCA 1884 at [13]–[14] per Middleton J. In MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there “is no precise standard for determining when an issue is ‘raised squarely’, but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it”.

21    As a practical matter, a Court may be more willing to draw the line in favour of an unrepresented party than a party represented by counsel. Or, expressed differently, the issue may be more likely to arise in those cases where one party is not represented.

51    Counsel submitted that should the reasons of Flick J in Kasupene be understood as reaching a general conclusion that was contrary to the submissions advanced on behalf of the appellant, then it should not be followed.

52    Counsel submitted that in the present case, the appellant was specifically asked in the statutory form whether she feared harm upon return to her country of citizenship, to which she replied in the affirmative and provided some detail of the feared harm. Counsel submitted that although the appellant did not develop her fears in argument or in evidence, she can be understood to have affirmed their truth and did not disavow them. Counsel submitted that under the AYY17 “test”, the foregoing would not suffice. However, where fear of relevant harm has at one point been expressly stated in the context of s 501CA(4)(b)(ii) of the Act, the Tribunal ought be required to consider that harm unless it can infer the fear is no longer held, and there was no scope for such an inference in the present case.

53    In the alternative, counsel for the appellant submitted that even if the “test” in AYY17 was held to be applicable, the primary judge misapplied it because the appellant’s fear of harm in the event that she is required to return to her country of nationality (the Falun Gong point) was an “established fact” that emerged from the appellant’s response to the relevant question on the statutory form, and therefore arose from the materials. The significance of the Falun Gong point was, in counsel’s submission, supported by a statement on the coversheet of the form –

This form asks for information that is important to the Minister or delegate making a decision about ... revocation of a decision to cancel your visa. It is intended ... to support your request for revocation of the mandatory cancellation of your visa under s 501(3A) of the Migration Act 1958.

54    Counsel submitted that there was no sufficient basis for the Tribunal to infer that the fear of harm which the appellant had claimed in the form was no longer held. Counsel submitted that the Falun Gong point was captured by paragraph [20] of the appellant’s statement of facts, issues and contentions, which was in the following form –

20    Both Ms Zhou and Mr Rek will suffer significant hardship if she is forced to return to China.

The appellant’s submissions in relation to the evasiveness finding

55    Counsel for the appellant submitted that the Tribunal’s finding that the appellant was evasive in giving evidence was legally unreasonable. Counsel submitted by reference to the passages of transcript set out at [45] above, that the appellant provided an affirmative answer to a question as to the content of the shipment by saying “Yes”, and that to the extent that the appellant added anything further, it can be understood as an elaboration of her previous answer indicating that the shipment was not as harmful as “true guns”. Counsel submitted that the Tribunal’s conclusion that the Appellant was evasive by reference to this example, in circumstances where no other examples were given, was legally unreasonable.

The Minister’s submissions

The Falun Gong point

56    Counsel for the Minister sought to meet the appellant’s submission in relation to the applicability of the principles identified by the Full Court in AYY16 by relying on the reasons of Ranghiah J (with whom Reeves J generally agreed) in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [29] which, in relation to whether there was a failure to consider material, did not draw any relevant distinction between the principles applicable to the consideration of protection visa claims, and the Minister’s function under s 501CA(4) of the Act in relation to the revocation of a decision to cancel a visa. In Viane at [28]-[30] Rangiah J stated –

28    In the context of an application for a protection visa, it has been held that whether a tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant’s claims: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [52]-[56]. In Minister for Immigration and Citizenship v SZRKT, Robertson J explained at [111]:

The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error.

29    The Minister has not submitted that there is any relevant distinction between the functions of a tribunal considering an application for a protection visa and the Minister’s function under s 501CA(4) of the Act.

30    If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act, which if accepted would or could be dispositive of the decision, the Minister’s error may be characterised as a jurisdictional error. Further, if what is overlooked is better characterised as “information” (or “material”, or “evidence”), rather than an “argument”, there may be jurisdictional error where the “information” is sufficiently important, such that the error is serious enough to be described as jurisdictional. It is not essential that either the argument or information is “critical” in the sense that its acceptance by the Minister would necessarily have resulted in a different outcome.

57    Counsel for the Minister also pointed to the fact that in Viane, Rangiah J at [25] cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [63], which were decided in the context of claims made in support of applications for protection visas.

58    In relation to the appellant’s submission that the Falun Gong point amounted to an “established fact” thereby engaging the principles identified in AYY17, counsel submitted that the reference in AYY17 to a “substantial clearly articulated argument, relying on established facts” comes from Dranichnikov at [24]. Counsel submitted that in Dranichnikov, the Tribunal had accepted the applicant as a credible witness, whose claims of a subjective fear of harm were all accepted. Counsel submitted that in the present case, as properly observed by the primary judge, the appellant did not advance her claims regarding past involvement with Falun Gong before the Tribunal. Counsel submitted that the primary judge was correct to find that there was no substantial clearly articulated argument advanced by the appellant, or her solicitor, concerning Falun Gong.

The evasiveness finding

59    In relation to the appellant’s claim that the credibility finding was legally unreasonable, counsel for the Minister submitted that the finding was at least open to the Tribunal to make. Counsel submitted that the Tribunal’s finding in this regard was illustrated by what the Tribunal described as an “example”, which was that when the appellant was asked in cross-examination whether she knew about the knives, sling shots and other weapons, she replied that the bullets were made of plastic.

Consideration

The Falun Gong point

60    As we have indicated, the appellant made two submissions in relation to the Falun Gong point. The first was that the principles identified by the Full Court in AYY17 at [18], which we have set out at [48] above, are not applicable to the review of the delegate’s decision under s 501CA(4). The second submission was that, assuming that the principles identified by the Full Court in AYY17 were applicable, the appellant had established a factual foundation for the Falun Gong point.

61    AYY17 concerned the review obligation of the Immigration Assessment Authority under Part 7AA of the Act relating to fast track reviewable decisions. It was accepted by the Full Court in AYY17 that the duty to consider claims and issues arising from material before the Authority was the same as that which applies to the Administrative Appeals Tribunal under Part 5 of the Act. In this case, the jurisdiction of the Tribunal to review the delegate’s decision not to revoke the cancellation of the visa was conferred by s 500(1)(ba) of the Act, which is in Part 9. There is no provision within Part 9 that casts an express duty on the Tribunal to review a decision of a delegate of the Minister under s 501CA(4) that corresponds to s 348(1) of the Act in relation to Part 5-reviewable decisions, or to s 412(1) of the Act in relation to Part 7-reviewable decisions, but the duty is to be implied from the terms of s 500(1)(ba). The review was in the Tribunal’s General Division, and as such, the powers of review in Part IV of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) applied: cf, s 24Z of the AAT Act. Those powers included the powers in s 43 of the AAT Act to exercise all the powers and discretions that were conferred on the Minister’s delegate as the person who made the decision.

62    The nature of the review by the Tribunal was informed by the provisions of the AAT Act, and by s 500 of the Act. The requirements of s 500 of the Act included that the application for review to the Tribunal had to be accompanied by the document notifying the delegate’s decision, and one set of the documents that s 501G(2) required the Minister to give the appellant with notification of the decision (s 500(6C)).

63    The general position under the AAT Act is that the Tribunal conducts hearings: s 34J, s 35. Under s 39, the Tribunal is required to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case. Under s 40, the Tribunal has power to take evidence on oath or affirmation, as it did in this case. Parties before the Tribunal are generally entitled to be represented by another person (s 32(1)), and in this case both the appellant and the Minister were legally represented before the Tribunal. The procedure of the Tribunal is within the discretion of the Tribunal, and the proceeding is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit: s 33. Under s 33(1AB), a party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A, which is as follows –

2A    Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision-making of the Tribunal.

64    Under s 33(2) of the AAT Act, the Tribunal is empowered to give directions, and in particular, is empowered by s 33(2A)(c) to require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.

65    In this case, the Tribunal heard oral evidence, and received statements of facts, issues and contentions, and submissions that were not before the delegate. Sections s 33(2A)(c), 34J, 35 and 39 of the AAT Act contemplate that the material before the Tribunal will be shaped by the evidence, submissions, and by the written statements of facts, issues, and contentions. These features of the statutory and procedural framework in which the review in the Tribunal was undertaken are relevant to the identification of the claims that were maintained before the Tribunal. However, it is to be borne steadily in mind that the nature of the review process is inquisitorial rather than adversarial. The inquisitorial nature of the Tribunal’s functions means that the way parties conduct their cases before the Tribunal does not have the same significance as the way parties conduct adversarial litigation before a court: cf, Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51]-[52] (Gleeson CJ, McHugh and Gummow JJ). In Benjamin v Repatriation Commission [2001] FCA 1879; 70 ALD 622 at [47] the Full Court (Moore, Emmett and Allsop JJ) stated –

Proceedings before the tribunal sometimes give the appearance of being adversarial but, in substance, a review by the tribunal is inquisitorial. Each of the commission, the board and the tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Grant v Repatriation Commission [1999] FCA 1629, 57 ALD 1 at [17]–[18], and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.

66    Therefore, a failure by the parties’ legal practitioners to raise issues of fact or law that are central to the Tribunal’s exercise of jurisdiction may not preclude the consideration on appeal or on judicial review of an error, at least on a central issue, that was induced by the parties’ submissions: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 54 FLR 334; Hospital Benefit Fund v Minister for Health (1992) 39 FCR 225; National Archives of Australia v Fernandes [2014] FCAFC 158; 233 FCR 478; Repatriation Commissioner v Warren [2008] FCAFC 64; 167 FCR 511 at [78]; Toia v Minister for Immigration and Citizenship (2009) 177 FCR 125 at [57]. And the Tribunal may be obliged to consider substantial issues raised by the material before it, even if the issue is not the subject of submissions by the parties: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], [68]. This latter obligation has led to the development in the authorities of guidance concerning when issues are raised by material such that the Tribunal, or the Immigration Assessment Authority, is required to consider the issues. That guidance includes the summary drawn from the authorities in the Full Court’s reasons in AYY17 at [18], which we have set out under [48] above. We accept that much of that guidance draws on cases concerning applications for protection visas, where claims in support of asylum, or claims in support of complementary protection may arise. That context informs some of the language used, and the reference to “claims”, which the Tribunal may be required to consider in the exercise of its review jurisdiction: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] (Allsop J, Spender J agreeing); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496.

67    In relation to a decision whether to revoke the cancellation of a visa under s 501CA(4) of the Act, the former visa-holder may make representations to the Minister in response to the Minister’s invitation that is required by s 501CA(3)(b). In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56], which concerned s 501CA(4), Robertson J distinguished Htun (cited above), and stated that while he accepted that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, he did not accept that any particular statement in the representations should be so characterised. On this point, Goundar was applied by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 at [41] (Besanko, Barker and Bromwich JJ), which in turn was cited by the Full Court in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198, where the Court (Jagot, Rangiah and Banks-Smith JJ) stated at [47] –

There was only one question that the Minister ultimately had to answer under s 501CA(4)(b)(ii) of the Act. It was whether he was satisfied that there was another reason why the original decision should be revoked. In the course of answering that question, the Minister was required to consider the representations as a whole as a mandatory relevant consideration: see Buadromo at [41]. If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the Minister may commit jurisdictional error: [Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [30]].

68    In the above passage, the Court cited with approval [30] of the reasons of Rangiah J (with whom Reeves J generally agreed) in Viane on which counsel for the Minister relied, which is set out under [56] above. Paragraph 47 of DPR17 was approved by Rares and Robertson JJ, and cited by Flick J, in Maioha v Minister for Immigration and Border Protection [2018] FCAFC 216 at [49] and [62]. Rares and Robertson JJ also stated at [48] that it was for the former visa-holder to put before the Minister by way of representation what it was that he or she wished the Minister to take into account. To similar effect, Flick J stated at [67] that it remains primarily the task of the visa-holder to place before the Minister – at least initially – such material as enables the Minister to be “satisfied” that (relevantly) there is another reason why the original decision should be revoked. Like reasoning applies in relation to an application to the Tribunal to review the decision of a delegate of the Minister under s 501CA(4), where the applicant for review has the opportunity to put before the Tribunal evidence, written contentions of fact and law, and oral submissions.

69    We do not consider that the primary judge’s reference to the guidance in AYY17 in formulating his conclusions at [36]-[42], which we have summarised at [40] to [43] above, involved any error. At the heart of the guidance in AYY17 is the idea that the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4) of the Act, where the section contemplates that the former visa-holder may advance matters by way of representation directed to why the power of revocation should be exercised.

70    In the circumstances of this case, and without more, it was not enough for a claim to be advanced before the Tribunal, so as to require it to be considered as part of its irreducible jurisdictional task, for the appellant to rely upon two sentences in the original personal circumstances form accompanying the appellant’s visa cancellation revocation request. The circumstances of this case included –

(1)    Part A of the request for revocation form sought the reasons being advanced for revocation, against which was written “Please see additional pages 4, 5, 6, 7”: [AB 215]. Those pages [AB 220-223] comprised three pages of handwritten statements that were expressly said to have been written on the appellant’s behalf, and made no reference to any matter associated with Falun Gong.

(2)    The reference to Falun Gong was in the “impediments to return” part of the personal circumstances form, and was in response to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”. The response, which we have set out at [27] above, was in the same handwriting as the handwriting at pages 4 to 7. The response raised the issue of employment prospects, and was qualified, equivocal, contingent, and lacking any substance without more information.

(3)    The appellant had adequate opportunity to advance and develop any material matter before the Tribunal through evidence, written contentions, and submissions at the hearing.

(4)    Although the appellant stated in her evidence in a compendious way that everything in the personal circumstances form was true, her evidence fell to be considered in its totality. When the appellant was asked about difficulties that she believed she would experience if she went back to China, she gave the evidence that we have set out under [31] and [32] above, which referred to her claimed health issues as an impediment to gaining employment. In response to questions in examination–in-chief, and in cross-examination, the appellant made no reference to having helped people who had an association with Falun Gong as being a possible impediment to employment. Furthermore, no reference to Falun Gong featured in the appellant’s statement of facts, issues and contentions that was prepared by the legal practitioner who represented her before the Tribunal, or in the submissions that were made to the Tribunal on her behalf at the hearing.

71    In [65] to [69] of its reasons, which we have set out at [35] above, the Tribunal addressed the case that had been maintained by the appellant before the Tribunal. Given that it was for the appellant to place before the Minister’s delegate, and in turn the Tribunal, the matters that she wished to have taken into account in aid of the exercise of the power to revoke under s 501CA(4), having regard to the procedures adopted by the Tribunal in this case, including taking evidence, the filing of contentions, and the hearing of submissions, there was no error by the Tribunal in not referring to a matter in the personal circumstances form that had not been maintained before the Tribunal. The Falun Gong point was not so central that the Tribunal was required to consider it notwithstanding the state of the evidence, and the parties’ contentions and submissions. Further, by reason of its objective inadequacies, it was not a matter that was sufficiently material such that it required consideration notwithstanding that it was not maintained on behalf of the appellant.

72    Even if the Falun Gong point was in fact made, in the sense that it was maintained before the Tribunal despite the indications to the contrary referred to above, by reason of its objective inadequacies we are not satisfied that it was material to the Tribunal’s decision: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [29]-[30], [40] and [72]; see also Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [23]. The Falun Gong point was objectively so insignificant that we are unable to conclude that any failure to take it into account could have materially affected the adverse decision that was made by the Tribunal. Nor was the point, if in fact maintained, of such independent moment that failing to consider it could otherwise constitute a jurisdictional error notwithstanding such failure did not deprive the appellant of a successful outcome: Hossain at [40] and [72].

The evasiveness finding

73    We reject the appellant’s claim that the Tribunal’s finding that the appellant was evasive in giving evidence was legally unreasonable and that the primary judge was in error in failing to uphold this claim.

74    The Tribunal’s finding that the appellant was evasive when giving evidence was a statement of the Tribunal’s impression made with the benefit of having observed the appellant give all her evidence. In civil appeals from decisions of judges sitting in trial courts, findings which are the product of an advantage which a trial judge enjoys, are not lightly reviewed: Dearman v Dearman (1908) 7 CLR 549 at 552-3; The Hontestroom [1927] AC 37 at 47; Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 62 ALR 53 at 56-57; Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]-[31]. In this case, the appellant faced the high hurdle of seeking to persuade the primary judge that the Tribunal’s finding that the appellant was evasive when giving evidence was legally unreasonable, thereby amounting to jurisdictional error.

75    The Tribunal’s finding that the appellant was evasive in giving evidence did not lack an evident and intelligible foundation, and was not legally unreasonable. The cross-examination of the appellant commenced by asking her to confirm that she did not know that the conduct relating to the offences of which she was convicted was illegal at the time (T19/30-35; T21/17-28). The cross-examiner then sought to challenge the appellant’s evidence by reference to the sentencing remarks of the trial judge following her convictions. It was in that context that the cross-examiner put to the appellant the two questions which we have set out under [45] above. In answer to the second question concerning the presence of knives, sling shots and other weapons, the appellant qualified her answer by reference to subject matter that was not responsive to the question.

76    There was nothing legally unreasonable or arbitrary in the Tribunal finding that that appellant had been an evasive witness, nor in doing so in part, and by way of example, by reference to particular evidence she gave in cross-examination. As his Honour observed at [71]:

… the Tribunal was discussing the whole of the applicant’s evidence and referred to this particular evidence as an example. The generalised evasiveness finding was not unreasonable nor arbitrary; it was based upon the Tribunal’s observations and impressions formed while observing the applicant give evidence.

77    On a fair reading of the transcript of the appellant’s evidence, it was in any event open to the Tribunal to conclude that she was evading answering the question that was put to her. That conclusion is a further reason why this ground cannot succeed. That is because, if “reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion”: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [59], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131].

Conclusion

78    We would dismiss the appeal.

Associate:

Dated:    5 April 2019