Hong v Minister for Immigration and Border Protection

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 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 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.

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. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich and Wheelahan.