Federal Court of Australia

Arhbal v Minister for Home Affairs [2021] FCAFC 220

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The appellant is a citizen of Morocco whose application for a Partner (Temporary) (Class UK) visa was refused by a delegate of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth). The appellant appeals from a decision of the Federal Circuit Court of Australia (FCCA) (Arhbal v Minister for Home Affairs [2021] FCCA 480, Judge Heffernan) dismissing an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal, on 11 January 2019 affirming the delegate’s refusal decision.

2    On 30 May 2011 the appellant married an Australian citizen, Ghizlane Ghilane. On 8 June 2011, the appellant applied for the visa. The primary issue before the delegate, and before the Tribunal on merits review, was whether or not the appellant was the spouse of Ms Ghilane, within the definition of that term supplied in s 5F of the Act, and whether his visa application satisfied the requirements of reg 1.15A, and cl 820.22 of Schedule 2, of the Migration Regulations 1994 (Cth). The Tribunal determined that he did not.

3    In the course of giving its reasons the Tribunal referred to a certificate issued under s 376 of the Act. In the appeal before the FCCA the appellant contended that the Tribunal erred in the manner in which it put information to the appellant that was included in documents referred to in the certificate.

4    On appeal from the FCCA the appellant contends that the primary judge erred:

(1)    In not holding that:

(a)    the power in s 359AA of the Act did not apply to information that was “non-disclosable information” within the meaning of s 5; and

(b)    disclosure in circumstances involving such information was governed by the power in s 376(3)(b) of the Act.

(2)    In finding that the Tribunal did not misconstrue s 359AA and/or s 376 of the Act, and should have found that the Tribunal had construed the provisions such that it did not consider that it had a separate power of disclosure under s 376, broader than the obligation under s 359AA.

(3)    In not holding that:

(a)    on the basis of the construction of the Act set out in ground (1) above;

(b)    the Tribunal’s error set out in ground (2) above;

the Tribunal had committed jurisdictional error, and further erred in holding that such error was not material.

5    For the reasons set out below, the appeal must be dismissed with costs.

2.    RELEVANT LEGISLATION

6    The decision of the delegate is a Part 5 reviewable decision under the Act. Division 5 of Part 5 of the Act provides for the conduct of Part 5 reviewable decisions.

7    Section 359 provides:

359 Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(4)    If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

8    Section 359AA provides:

359AA Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

9    Section 359A provides:

359A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review;

or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(5)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

10    The term “non-disclosable information” is used in s 359A(4)(c). It is defined in s 5 of the Act:

non-disclosable information means information or matter:

(a)    whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

(i)    prejudice the security, defence or international relations of Australia; or

(ii)    involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

(b)    whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c)    whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

11    Section 360(1) provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 363(1) provides that for the purposes of the review of a decision the Tribunal may (a) take evidence; (b) adjourn the review from time to time; (c) subject to s 378, give information to the applicant and to the Secretary; and (d) require the Secretary to arrange for the making of any investigation that the Tribunal thinks necessary.

12    Division 6 concerns the decisions of the Tribunal for Part 5 reviewable decisions. Division 7 concerns offences committed in relation to Part 5 reviewable decisions.

13    Division 8 contains miscellaneous provisions relevant to Part 5 reviewable decisions. Section 375 provides that the Secretary shall not give to the Tribunal a document or information if the Minister certifies in writing that the disclosure of any matter contained in either would be contrary to the public interest. Section 375A provides for a circumstance where certain information may only be disclosed to the Tribunal, but not be disclosed to other persons.

14    Section 376 provides:

376 Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister:

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.

(2)    Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    shall notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.

(Emphasis added.)

3.    THE DECISION OF THE TRIBUNAL

15    The Tribunal observed, as a matter of background, that the appellant’s visa application had previously been refused by a delegate in June 2014, and that decision was affirmed by the Tribunal on review and subsequently appealed to this Court whereupon the Minister had consented to the matter returning to the Tribunal for reconsideration because the existence of a certificate issued under s 375A of the Act had not been disclosed to the appellant. It noted that on 4 December 2017 the certificate issued under s 375A was revoked and replaced with a certificate issued under s 376 of the Act. The Tribunal observed:

9.    On 4 December 2017, the certificate issued under s 375A was revoked and replaced with a certificate issued under s 376 of the Act. This provides the Tribunal a discretion to disclose the information.

10.    The Tribunal wrote to Mr Arhbal on 13 August 2018 and provided a copy of the certificate issued under s 376 of the Act and invited his comment on the validity of this certificate. No comments on the validity of the certificate were received.

11.    Where the information covered by the certificate was relevant to Mr Arhbal’s matter this information was put to him under s 359AA of the Act as detailed below.

16    The Tribunal then considered the claims made and the evidence given. It summarised the appellant’s claims going to the history of his relationship with Ms Ghilane. It expressed the view that the appellant was a difficult witness whose evidence had a forced and rehearsed quality. It adopted a cautious approach to his evidence and relied on it only where supported by other reliable evidence.

17    The Tribunal set out the information that it put to the appellant arising from the certificate issued under s 376 of the Act. In this regard it first said:

45.    Mr Arhbal was provided a copy of the allegation that the relationship was not genuine. This allegation was also put to him under s 359AA of the Act at the hearing. Specifically it was put to him that an allegation was made to immigration that:

•    He entered Australia as a student but did not study.

•    He did not apply for another visa after his student visa expired.

•    He married in May 2011, maybe late May 2011.

•    Ms Ghilane met him through his uncle who lives in Australia.

•    After they married Ms Ghilane learned his intentions were not genuine and that he only married to obtain a visa.

•    Ms Ghilane had not lodged an application for a visa, and all the papers are with Mr Arhbal and his lawyer.

•    Ms Ghilane had no awareness of an application where she has sponsored you for a visa.

18    The Tribunal recorded the response to these allegations. It next put further allegations arising from the information contained in the s 376 certificate:

53.    Another matter put to Mr Arhbal under s 359AA of the Act from the immigration file was an anonymous notification that Mr Ali Arhbal (the uncle of Mr Arhbal) was attempting to sponsor his nephew for a permanent visa. It says that Mr Ali Arhbal was in jail for four months in 1985/86 for the importation of cannabis resin sent by his (Mr Ali Arhbal’s) brother and the father of the visa applicant. It goes on to state that Mr Ali Arhbal does not seem to earn a great deal and it is doubtful he could support his nephew without drawing on cash that is not disclosed for income tax purposes.

54.    He was advised this would be relevant to the financial aspects of the relationship with reference also to money deposited to Ms Ghilane’s bank account and referred to in the decision of the previous Tribunal and may support an allegation that he had paid Ms Ghilane to sponsor him for the visa. Mr Arhbal was advised that if the Tribunal relied on the information this may be part of the reason to support a finding he had paid Ms Ghilane to sponsor him for the visa.

19    The Tribunal then recorded the appellant’s responses and put a further allegation to him:

57.    A third allegation put to Mr Arhbal under s.359AA from the immigration file was that an allegation was made on 23 April 2015 that he had paid $40,000 for sponsorship for a spouse visa. The allegation while anonymous, identified Mr Arhbal by name and gave an approximate age. It provided his country of birth and previous addresses by suburb. It provided the make of car that Mr Arhbal drives. It provided his sponsor’s name and approximate age and that she was an Australian citizen but was in Morocco. The allegation is that they lodged the application and stayed together for one and a half years before Ms Ghilane told Mr Arhbal she was going to Morocco for one month but did not return. It alleges that Ms Ghilane conned Mr Arhbal, taking the money and leaving for Morocco where she currently lives. The allegation cites the source of the information being a friend of Mr Arhbal.

58.    Mr Arhbal was advised that if this information is relied on the Tribunal would find either relying on this information on this own or in combination with the decision of the previous Tribunal hearing that repeat deposits of $8,000 were made into the sponsor’s bank account which could not be satisfactorily explained, supports the allegation that Mr Arhbal paid Ms Ghilane to sponsor him for the visa.

20    The appellant’s responses to those allegations were then noted by the Tribunal.

21    The Tribunal next addressed the criteria required to be considered in clause 820.211(2)(a) of Schedule 2 of the Regulations. It found as follows, that:

(1)    the parties were married to each other in a marriage that is valid for the purposes of the Act as required by s 5F(2)(a);

(2)    it was not satisfied that there was more than limited sharing of day-to-day expenses between the appellant and Ms Ghilane at the time of the visa application;

(3)    at times they both lived at the same address but that they did not share responsibility for the housework;

(4)    it was not satisfied that they represented to other people as being in a married relationship, although they had undertaken some outings and social events together; and

(5)    it was not satisfied that a relationship existed before the appellant and Ms Ghilane were married. It considered that “at best” it came into existence at the time of their marriage. It rejected the appellant’s evidence that they had been engaged. It was not satisfied that that they were in a long term relationship at the time of the visa application.

22    The Tribunal concluded that, having considered the factors in reg 1.15A of the Regulations, it was not satisfied that at the time of the application the parties had a commitment to a shared life to the exclusion of all others or that the relationship was genuine and continuing. As a result it was not satisfied that the appellant met the requirements in s 5F(2) of the Act and was the spouse of Ms Ghilane at the time of the visa application. It was accordingly unnecessary for it to consider the Schedule 3 criteria as required by cl 820.211(2)(d) of Schedule 2 of the Regulations. Nevertheless, in the light of the subsequent breakdown of the relationship, the Tribunal considered that it would not have been satisfied that there were compelling reasons not to apply the Schedule 3 criteria.

23    Accordingly, the Tribunal affirmed the delegate’s decision.

4.    THE REASONS OF THE PRIMARY JUDGE

24    After setting out the statutory background and summarising the reasons of the Tribunal, the primary judge set out in detail the submissions advanced by the appellant.

25    The appellant contended before the primary judge that the Tribunal had power to give information to the appellant pursuant to s 363(1)(c) of the Act and also s 376(3)(b). The exercise of that power is subject to an implied condition that it is to be exercised within the bounds of reasonableness. Furthermore a failure to consider exercising the power under s 376(3)(b) may be legally unreasonable. The appellant submitted that by ss 359A and 359AA of the Act the Tribunal is required to give certain information to an applicant, however, the obligation under those provisions, where applicable (in the case of there being information that is “non-disclosable”), is subject to the proper exercise of discretion under s 376(3)(b). Furthermore, s 376(3)(b) has an application that is broader than either s 359A or s 359AA because the latter provisions do not always apply to the disclosure of “non-disclosable information”. As a consequence, the appellant submitted that there may be information the subject of a certificate under s 376 that is not required to be disclosed under either s 359A or s 359AA, but which can be disclosed under s 376(3)(b). The result is that s 376 allows for a weighing up of the public interest considerations going to non-disclosure.

26    The appellant submitted before the primary judge that an inference arises from the materials that the Tribunal did not understand that it had a separate power of disclosure under s 376 which was broader than that under s 359AA and that it failed to weigh up the relevant considerations or even consider the application of s 376. Accordingly, he submitted that the Tribunal erred in law in that it failed to consider whether to disclose the documents or information the subject of the s 376 certificate under s 376(3)(b) or alternatively, if it did consider the question, it did so in a manner that was legally unreasonable.

27    In rejecting the appellant’s submissions, the primary judge first expressed the view that the Tribunal had in fact recognised at [9] of its reasons that it had power under s 376 to disclose the information identified in the certificate. The primary judge rejected the contention that after having done so, the Tribunal proceeded on the basis that the discretion that it had could only be exercised under s 359AA. That central conclusion resolved the application adversely to the appellant.

28    The primary judge next rejected the secondary argument advanced by the appellant that the Tribunal was not permitted to make disclosure to the appellant under s 359AA. He said at [29]:

… The section specifically refers to circumstances in which an applicant appears at a hearing to which he or she has been invited under s 360. I accept the submission of the first respondent that s 359AA(1) of the Act provides a mechanism by which disclosure contemplated by s 376(3)(b) can occur.

29    The primary judge set out the definition in s 5 of the Act of “non-disclosable information” and noted that the reference to that term is contained in s 359A(4)(c) (not s 359AA). The distinction between the notice in writing provisions in s 359A as opposed to the oral notice requirements in s 359AA was of importance to the primary judge. He found:

30.     In my view, the reference to non-disclosable information in s 359A means that the terms of s 359A do not apply to non-disclosable information, not that s 359AA does not apply to non-disclosable information. The term ‘non-disclosable information’ is not used in s 359AA. Where information is non-disclosable, the disclosure mechanism contemplated by s 359A(1) does not apply to it. In addition, by virtue of s 359A(3), where the form of disclosure contemplated in s 359AA is used by the Tribunal, s 359A does not apply. That is entirely different to the submission put by the applicant that s 359AA does not permit the disclosure of non-disclosable information. The authority cited by the applicant, Minister for Immigration and Citizenship v Kumar, [10] dealt with s 359A, not s 359AA. Section 359AA operates as an alternative mechanism to s 359A with respect to matters and information to which that section applies, but it also operates as a disclosure mechanism with respect to s 376(3)(b). When the reasons of the Tribunal are read in light of that, the submission that an inference can be drawn that it failed to consider the exercise of the discretion to make disclosure under s 376(3)(b) cannot be accepted. The relevant passages of the reasons simply demonstrate that the Tribunal adverted to the discretion under s 376(3)(b) and determined appropriately to apply the disclosure mechanism provided for in s 359AA.

31.     I am not persuaded by the submission of the applicant that the discretion under s 376(3)(b) to “disclose any matter contained in the document or the information” is broader than the discretion in s 375AA [sic 359AA] to disclose “clear particulars of any information”. The discretion in s 376(3)(b) does not appear to extend to disclosing the document itself. The discretion in s 375AA [sic 359AA] clearly extends to ‘information’ which might be contained within documents. The only way that meaningful and reasonable disclosure could be made of ‘any matter’ contained in a document or information would be for clear particulars of it to be given. There is no reason to conclude that clear particulars could not extend to a verbatim disclosure of the relevant matter in the document or information. I am not satisfied that it has been demonstrated that the Tribunal misunderstood the breadth of the discretion under s 376 to disclose ‘any matter’.

(Emphasis added.)

30    Finally, the primary judge found that there was no materiality arising. The decision of the Tribunal did not turn on any of the information disclosed by way of s 359AA, but rather involved a straightforward application of the factors in reg 1.15A.

5.    THE APPEAL

5.1    The appellant’s submissions

31    The appellant adopts the submissions that he advanced before the primary judge. He submits that the primary judge erred in describing s 359AA as a “mechanism” for disclosure under s 376 and contends that s 376(3)(b) provides for a separate and anterior exercise of power that occurs before any consideration or application of s 359AA, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [24], [30] (Bell, Gageler and Keane JJ). He contends that there was inconsistency in the primary judge’s reasoning where his Honour appears to accept that s 376(3)(b) provides a separate and distinct power to that of s 359AA but then finds that the disclosure is made under s 359AA. This is compounded, he submits, by the primary judge’s holding that disclosure under s 359AA is no different from that under s 376.

32    The appellant submits that the paragraphs in SZMTA upon which he relies provide for a hierarchy of provisions that apply to Part 5 reviewable decisions in that: (1) an applicant is entitled under s 362A to any written material given in respect of a review; (2) there is also power under s 363(1)(c) to give information to an applicant; (3) this right and power are both constrained by a notification under s 376; (4) in order to exercise the power under s 363(1)(c), there must be an affirmative exercise of discretion under s 376(3)(b); (5) there is also an obligation on the Tribunal under s 359A and s 359AA to disclose certain information; and (6) both of these obligations are “truncated” in the absence of an affirmative exercise of discretion under s 376(3)(b).

33    The appellant submits that whilst “strictly speaking” the primary judge was correct to hold that s 359AA does not expressly state that it does not apply to non-disclosable information, nevertheless the disclosure under s 376(3)(b) is much broader than the power or obligation under s 359AA, the words “any matter” being broader than “any particulars” in s 359AA. He submits that there was nothing in the reasoning of the Tribunal to support the finding that it had properly construed the sections in this manner, or that it understood that its obligations under s 359AA were truncated. Instead “the Tribunal appears to have construed its power of disclosure as being subject to s 359A, and therefore applied s 359AA”.

34    The appellant submits in the alternative that the primary judge erred in holding that s 359AA was a “mechanism”, and should have held that the Tribunal considered it to be a fetter on the exercise of its discretion under either s 363(1)(c) or s 376(3)(b). He contends that the Tribunal’s decision to base the exercise of its discretion on s 359AA was legally unreasonable.

35    The appellant also contends that such errors on the part of the Tribunal were material, and that the primary judge erred in failing to reach that conclusion.

5.2    Consideration

36    The difficulty with the appellant’s primary submission is that it misconstrues the reasons of the Tribunal by contending that the Tribunal considered the exercise of its discretion pursuant to s 376(3)(b) to be somehow subordinate to the application of s 359AA. We consider that this submission is without foundation.

37    The passages relied upon by the appellant in SZMTA are at [24] and [30] and are as follows:

24.    Second, the Tribunal has a discretion under s 438(3)(b), after taking account of such advice as the Secretary may have given to the Tribunal under s 438(2)(b), to disclose to the applicant the information or any matter contained in the document. Implicit in the conferral of that discretion and in the hierarchy of provisions within Pt 7 is that the Tribunal has no power under s 427(1)(c) and no obligation under s 424AA, s 424A or s 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised. No doubt, the discretion under s 438(3)(b) must be exercised within the bounds of reasonableness and the obligations imposed by ss 424AA, 424A and 425, where engaged, must be performed to the maximum extent permitted by the reasonable exercise of that discretion.

…

30.    A notification by the Secretary to the Tribunal that a document or information given by the Secretary to the Tribunal is a document or information to which s 438 applies is an event which alters the procedural context within which the Tribunal’s duty of review is to be conducted. If valid, the notification erects a procedural impediment to the otherwise unfettered ability of the Tribunal to take into account the document or information if the Tribunal considers it to be relevant to an issue to be determined in the review, constrains the power of the Tribunal under s 427(1)(c), and truncates the specific obligations of the Tribunal under ss 424AA, 424A and 425. The very fact of notification also changes the context in which the entitlement of the applicant under s 423 – to give the Tribunal a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review – falls to be exercised.

38    The terms of s 438(3)(b), s 424AA, s 424A and s 425 are relevantly equivalent, respectively, to s 376(3)(b), s 359AA, s 359A and s 360.

39    It is apparent from [24] of SZMTA that the discretion resides in the Tribunal under s 438(3)(b) insofar as there is a valid certificate, and that there is no obligation under s 424AA, s 424A or s 425 to disclose to the appellant the information nor any matter contained in the document “unless the discretion is affirmatively exercised”. The same applies for the cognate provisions in relation to Part 5 reviewable decisions.

40    We have set out [9]–[11] of the reasons of the Tribunal at [15] above. The Tribunal clearly acknowledged that it had a discretion to disclose the information identified in the certificate to the appellant. The appellant was invited by the Tribunal to make submissions as to its validity and declined to do so. In [11] of its reasons the Tribunal noted that where information covered by the certificate was relevant to the appellant’s matter, this was put to him “under s 359AA of the Act” as detailed later. Nothing in this language suggests that the Tribunal considered that it was fettered in the exercise of its discretion under s 376(3)(b) by reference to the terms of s 359AA. Indeed it is tolerably clear that the identification of s 359AA simply made clear that the Tribunal had elected to exercise its discretion by providing information to the appellant orally. Similarly, where the Tribunal referred to having “put” to the appellant specific matters within the s 376 certificate (at [45], [53] and [57] of the Tribunal’s decision), we do not understand it to have exercised a discretion separate to that within s 376(3)(b). Rather, it is apparent that having decided to engage s 359AA, the Tribunal proceeded to comply with the obligations under that section. That course was in conformity with the passages in SZMTA to which we have referred.

41    Furthermore, it is apparent from a review of the transcript of the hearing before the Tribunal that the Tribunal summarised the effect of the information, ensured that the appellant understood why it was relevant to the review and invited him to comment on or respond to it. At the conclusion of the hearing the Tribunal reiterated to the legal representative for the appellant that he could provide such further information as he wished to address matters raised during the hearing.

42    In the present case the appellant seeks to construct an argument to the effect that it may be inferred that the Tribunal wrongly perceived itself to be fettered in the exercise of its discretion by the terms of s 359AA. In our respectful view, that argument is an artifice unsupported by the language used by the Tribunal in its decision or, to the extent relevant, the transcript of the hearing. We agree with the primary judge that there is no basis to infer that the Tribunal did not understand the nature of the power that it had under s 376. It is apparent that the Tribunal first considered the exercise of its discretion under s 376(3)(b) and then determined that it was appropriate to communicate that information to him orally in accordance with s 359AA. That is not to say that the Tribunal considered that the only manner in which it could communicate the information was pursuant to s 359AA. Rather, the proper inference to draw from the reasoning is that the Tribunal decided pursuant to s 376(3)(b) to impart that information to the appellant in a manner that conformed with s 359AA in order that the appellant could benefit from the protections afforded by the requirements of that section. We can see no basis to conclude that the Tribunal considered that the information imparted to the appellant should be limited or constrained. The primary judge did not err in so finding.

43    For the same reasons we reject the submission advanced by the appellant to the effect that the decision of the Tribunal was legally unreasonable. It is apparent from its reasons at [9]–[11] that the Tribunal considered in the exercise of its discretion under s 376(3)(b) that it was relevant to put certain information to the appellant. In circumstances where we have rejected the appellant’s submission as to the basis upon which the Tribunal exercised its discretion, there is no foundation upon which it may be concluded that it acted in a manner that was legally unreasonable. To the contrary, the exercise of the discretion by reference to a filter of relevance was in our view clearly within the bounds of decisional freedom afforded to the Tribunal within s 376(3)(b).

44    Accordingly, for the reasons set out above we consider that the grounds of appeal are not made out and that the appeal should be dismissed. Having reached this view, we do not consider it necessary to consider the submission that the alleged errors on the part of the Tribunal were material.

6.    DISPOSITION

45    The appeal must be dismissed. The appellant must pay the Minister’s costs of the appeal.

Associate:

Dated:    6 December 2021