Hong v Minister for Immigration and Border Protection & Anor

[2019] HCATrans 167

[2019] HCATrans 167

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

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 AUGUST 2019, AT 9.30 AM

Copyright in the High Court of Australia

MR D.H. GODWIN:   If it please the Court, I appear with MR T.J. DAVIE for the applicant.  (instructed by the applicant)

MR G.J. JOHNSON:   May it please the Court, I appear for the first respondent.  (instructed by Minter Ellison)

HER HONOUR:   Yes, Mr Godwin.

MR GODWIN:   Your Honour, we are moving on a motion which is supported by an affidavit of the applicant and I would read that affidavit.

HER HONOUR:   Yes.  Mr Johnson, I take it there is no objection?

MR JOHNSON:   There is not, your Honour.

HER HONOUR:   Yes.  I have read the affidavit.  Mr Godwin, I might just raise a matter with Mr Johnson.  Mr Johnson, I do not believe any written submissions have been filed on the Minister’s behalf.  What is the position taken in relation to this application?

MR JOHNSON:   Your Honour, my instructions are that the application is opposed.  I do apologise that no written submissions ‑ ‑ ‑

HER HONOUR:   I intended no criticism, Mr Johnson, but I just thought it would be useful if I could get to the heart of the matter.  I have read the materials.

MR JOHNSON:   Yes.

HER HONOUR:   I have been assisted very much by Mr Godwin’s written submissions.  Mr Johnson, appreciating that no grant of special leave has been made in this case, and in that sense one looks to the requirement for exceptional circumstances to grant the relief that is sought, you would be aware that commonly enough, when an application for special leave to appeal is made by an unrepresented applicant, as this applicant was at the time the initial application was filed, the Rules make provision for it to be dealt with without the respondent to the application being troubled.  That is not the course that has been taken here.  The applicant now appears by counsel.  An amended application for special leave has been filed and the Minister has been invited to respond to that application and, indeed, I think the response is due today.

MR JOHNSON:   Yes.

HER HONOUR:   One looks at an application which, on the applicant’s behalf, is said to raise questions of law touching on the degree of materiality that is required to found jurisdictional error in light of recent decisions of the Court in Hossain and SZMTA and it is said that there is some tension in decisions in the Federal Court of Australia in relation to the requirement to consider the integers of a claim in circumstances in which it is advanced in representations made in response to an invitation to make representations. 

Now, looking at those matters, without expressing any concluded view about the merits of the argument, I would be inclined to say that the prospects of the grant of special leave are not insubstantial.  If one looks at the question of the balance of convenience, were the applicant to not obtain the relief that she claims, she would face, on the material before me, hardship in being returned to China. 

The directions that have been given by the Deputy Registrar would see this application for special leave to appeal being dealt with in what I would describe as a timely fashion.  Does the Minister point to any aspect of prejudice were I to make the order that is sought?

MR JOHNSON:   Certainly no prejudice, no, your Honour.  The principal basis upon which the Minister opposes the relief sought in the summons is, first, the question of the prospects of the special leave application succeeding.  I have heard what your Honour has said and am certainly mindful of the fact that the Court indeed referred this matter to counsel for consideration and that a well‑considered amended special leave application has been filed.  It may for present purposes be unhelpful to delve into the detail of those arguments at this juncture.

HER HONOUR:   Yes.

MR JOHNSON:   But when one looks at how the Full Court, split though it was in the present case, dealt with the argument that was before it, or at least one of the arguments that was before it that is now agitated on the special leave application, the Minister’s submission is that there was not as substantial a difference arising from those opinions as the applicant contends and at the heart of the question was an assessment of the significance of the particular claim that the Tribunal did not consider.

HER HONOUR:   Yes.

MR JOHNSON:   Now, the applicant seeks to put arguments around that, but the Minister makes a submission that that particular argument does not enjoy sufficient prospects of success but I have certainly heard what your Honour has said in relation to that.  In relation to the balance of convenience the Minister submits that the applicant is and remains in immigration detention and that that is of some hardship in and of itself.  The

Minister of course has his duty to remove from Australia an unlawful non‑citizen in the applicant’s situation as soon as reasonably practicable.

Now, there is, of course, no bar to that performance of the duty when a special leave application is filed, unless, of course, the Court orders that that not occur.  Those are the submissions I make on the basis upon which the Minister opposes it.  If the Court please.

HER HONOUR:   Thank you, Mr Johnson.  Mr Godwin, I am much assisted by your written submissions.  I do not need to hear further from you.

MR GODWIN:   Thank you, your Honour.

HER HONOUR:   By summons filed on 20 – I withdraw that.  There is one matter where I would be assisted.  By your summons, Mr Godwin, you seek an injunction restraining the Minister and his servants or agents from removing the applicant until further order.  I must say I have some reservations about an order framed in that way.  Is there a difficulty with framing an order that “Until the determination of the applicant’s application for special leave to appeal and the determination of any appeal should special leave be granted, the first respondent be restrained” in the way you seek.

MR GODWIN:   No, the applicant is perfectly content with that, your Honour.

HER HONOUR:   Mr Johnson, is that a suitable form of order?

MR JOHNSON:   It is, your Honour.

HER HONOUR:   Yes, thank you.

By summons filed on 26 August 2019, the applicant applies for an injunction restraining the first respondent (“the Minister”), his servants or agents from removing her from the jurisdiction. 

The applicant is a citizen of the People’s Republic of China who is presently being detained in the Villawood Detention Centre. On 29 March 2017, a delegate of the Minister cancelled the applicant’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that the applicant has a substantial criminal record and was then serving a term of imprisonment.

On 5 April 2017, the applicant made representations to the Minister seeking revocation of the cancellation of her visa pursuant to section 501CA(4) of the Act. Relevantly, that provision empowers the Minister to revoke the original decision if the person makes representations in accordance with the invitation and the Minister is satisfied that there is another reason why the original decision should be revoked. In her representations to the Minister the applicant referred to a range of considerations, including her 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 “do you have any concerns or fears about what would happen to you on return to your country of citizenship?” To that question the applicant placed an “X” in the box indicating that she had such concerns or fears.

On 14 September 2017, a delegate of the Minister made a decision that the delegate was not satisfied that there is another reason why the original decision to cancel the applicant’s visa should not be revoked.

The applicant applied for review of the delegate’s decision to the Administrative Appeals Tribunal (“the Tribunal”).  On 27 November 2017, the Tribunal affirmed the delegate’s decision.  The Tribunal did not make a finding in relation to what may be described as the “Falun Gong claim”.  The applicant applied for judicial review of the Tribunal’s determination to the Federal Court of Australia.  Justice Lee rejected a contention that the Tribunal’s failure to consider the Falun Gong claim amounted to jurisdictional error.  His Honour’s conclusion took into account that even though the Falun Gong claim had been raised and summarised by the delegate, the applicant did not raise the claim before the Tribunal as one that was being maintained.  His Honour concluded that the Falun Gong claim did not arise squarely on a review of the material before the Tribunal and the applicant’s claim was dismissed.

The applicant appealed from his Honour’s orders to the Full Federal Court of Australia.  In joint reasons, Justices Bromwich and Wheelahan agreed with the primary judge’s reasons for dismissing the challenge based on the Tribunal’s failure to consider the Falun Gong claim.  Their Honours did not accept that the primary judge’s reference to the decision in AYY17 v Minister for Immigration and Border Protection[1] involved any error.  At the heart of the guidance in AYY17, a case concerning the review of the refusal of a protection visa, their Honours said, is the idea that the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. Their Honours said this applied equally in relation to matters advanced in representations in the review of a decision made under section 501CA(4) of the Act.

[1] [2018] FCAFC 89.

Justice Logan in dissenting reasons approached the matter on the basis that the representations referred to in section 501CA(4)(a) are those made pursuant to section 501CA(3)(b) in response to the invitation extended to that person to make representations to the Minister. Necessarily, in his Honour’s view, the representations made by the person are for the purposes of the exercise of the discretion conferred on the Minister and his delegates under section 501CA(4) and amount to a relevant consideration in the sense described by Justice Mason in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd[2].  In light of the decision of this Court in Dranichnikov v Minister for Immigration and Multicultural Affairs[3], Justice Logan considered that the Tribunal constructively failed to exercise its jurisdiction by its failure to consider the Falun Gong claim.

[2] (1986) 162 CLR 24.

[3] (2003) 77 ALJR 1088.

On 2 May 2019, the applicant filed an application for special leave to appeal from the orders of the Full Federal Court. On 8 August 2019, the applicant filed an amended application for special leave to appeal. By her amended application the applicant challenges the Full Court majority finding that it was not incumbent on the Tribunal to consider the Falun Gong claim and their Honours’ allied conclusion that the Falun Gong claim was insufficiently material in any event to constitute jurisdictional error. She asserts that her application gives rise to questions of law of general importance and is a suitable vehicle for this Court to settle differences of opinion in the Federal Court respecting the obligation to consider matters provided in response to an invitation issued under section 501CA(3)(b) of the Act and that the application provides a vehicle for this Court to clarify what is described as the level of materiality required in the case of the failure to consider a claim as constituting jurisdictional error. Generally, the applicant relies on Justice Logan’s analysis.

On 19 August 2019, the Deputy Registrar ordered the Minister to file and serve a response by 29 August 2019.  The directions provide for the applicant to file any reply by 5 September 2019 and for the Minister to prepare, file and serve the application book on or before 26 September 2019. 

On 22 August 2019, the applicant received written notice from the Department of Home Affairs advising her of the Minister’s intention to remove her from Australia on 30 August 2019.  The applicant was advised that unless restrained by an interlocutory injunction or order made by this Court or other court of competent jurisdiction, it is the Department’s intention to proceed with her removal from Australia on that day.  It is not in question that the Court has power to grant an injunction to maintain the status quo in order to do justice between the parties pending the hearing of an application for special leave to appeal.  Equally, the grant of such relief is exceptional[4].  The principles to be applied in the exercise of the discretionary power to grant an interlocutory injunction in private cases apply to public law cases, albeit different factors may arise for consideration in giving practical effect to those principles[5]. 

[4]  Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 at 684, 685 per Brennan J; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 868; 153 ALR 641.

[5]  Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 74 ALJR 830 at 832 [7] per Gleeson CJ; 171 ALR 341 at 343.

I consider the applicant’s prospects of success on her application for special leave to appeal are not insubstantial.  In the event that special leave to appeal is granted, and were the appeal to succeed, the applicant would have the opportunity of having her claim considered by the Tribunal, including what I have described as the Falun Gong claim. 

The balance of convenience favours the applicant.  Her application for special leave to appeal was filed prior to notice being given to her of the date of her proposed deportation.  The directions given by the Deputy Registrar will ensure that the application for special leave to appeal is disposed of in a timely way. 

The Minister does not identify any prejudice arising from deferral of the deportation until determination of the application for special leave and in the event that application is granted, until the determination of the appeal. The Minister points to the circumstance that the applicant is in immigration detention and to the duty imposed on officers of his Department to remove persons from Australia under the scheme of the Act. That obligation does not require officers to remove a person from Australia prior to the determination in the ordinary course of a pending application for special leave in circumstances in which the merits of that application are assessed as not insubstantial.

For these reasons there will be the following order:  “Until the determination of the applicant’s application for special leave to appeal and the determination of any appeal should special leave be granted, the first respondent and his servants or agents are restrained from removing the applicant from the jurisdiction”.

MR GODWIN:   Your Honour, I know this is a matter that was being referred on a pro bono basis to counsel, but there has been a contingent agreement entered into with the client in relation to costs, so I would seek costs of the application seeing the Minister chose to oppose it.

HER HONOUR:   Mr Johnson?

MR JOHNSON:   I cannot resist that, your Honour.

HER HONOUR:   Yes.  The first respondent is to pay the applicant’s costs of the application.

MR GODWIN:   May it please the Court.

MR JOHNSON:   If the Court pleases.

AT 9.53 AM THE MATTER WAS CONCLUDED