Hong v Minister for Immigration and Border Protection & Anor

This proceeding concerned an application for special leave to appeal to the High Court of Australia. The applicant, Mr. D.H. Godwin, appeared with his learned friend, Mr. T.J. Davie, for the applicant, while Mr. G.J. Johnson appeared for the first respondent, the Minister for Immigration and Border Protection. The core of the dispute revolved around whether the Administrative Appeals Tribunal had erred in its conclusion that a claim related to the Falun Gong was not maintained by the applicant before it.

The legal issues before the High Court were whether the Tribunal’s majority decision was wrong in finding that the Falun Gong matter was not maintained by the applicant, and whether the Tribunal’s reliance on its procedural approach was misplaced in reaching that conclusion. The applicant argued that the Falun Gong claim was raised in response to a section 501CA(3)(b) invitation and was part of the representations made, specifically in response to a question about impediments to removal. This was presented as a central rather than peripheral matter, structured to align with Ministerial Direction No. 65 concerning matters to be taken into account when considering visa cancellation.

The Court considered whether the applicant's representation regarding the Falun Gong, though not explicitly detailed in the Tribunal's statement of facts, issues and contentions or submissions, was nonetheless required to be considered due to its inclusion in the initial representations and the structure of the prescribed form. The applicant contended that, similar to the principles in *Uelese*, the Ministerial Direction and the requirement to consider representations mandated consideration of this issue, even if not re-articulated at the Tribunal level. The Court noted that the applicant's legal adviser did not specifically advance this point in submissions, raising a question of whether the claim was sufficiently maintained for the Tribunal to address. The Court ultimately determined that the application did not raise an issue of principle warranting the grant of special leave.

Special leave to appeal was refused with costs. The Court expressed gratitude to Mr. Godwin and Mr. Davie for their assistance provided pro bono.