FEDERAL COURT OF AUSTRALIA

Zreika v Minister For Home Affairs [2020] FCA 995

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

WIGNEY J:

1    Mr Midhat Ahmad Zreika has appealed from a judgment of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection to refuse Mr Zreika’s application for a Partner (Residence) (Class BS) visa (partner visa). The difficulty for Mr Zreika was that his relationship with his sponsoring partner had ceased by the time of the delegate’s decision. He therefore did not meet a central criterion for the grant of a partner visa. He sought to deal with that difficulty by claiming that he had suffered family violence committed by his sponsoring partner, a circumstance which would have exempted him from satisfying the criterion that he continued to be sponsored by his sponsoring partner. The Tribunal, however, was not satisfied that Mr Zreika had suffered any such family violence. Nor was an independent expert whose opinion was sought by the Tribunal.

2    Mr Zreika argued before the Circuit Court that the Tribunal made a jurisdictional error in determining his application for a review of the delegate’s decision. He claimed that the Tribunal, acting pursuant to an invalid certificate issued by a delegate of the Minister under s 376 of the Migration Act 1958 (Cth), had failed to disclose certain adverse information to him and as a result had denied him procedural fairness. He also argued that the opinion of the independent expert, whose opinion the Tribunal sought and accepted, was invalid because the expert had acted on a misunderstanding of the relevant law and, as a result, failed to take into account one of his claims concerning family violence.

3    The primary judge in the Circuit Court rejected both of those arguments. As for the first of the arguments, his Honour found, in essence, that the Tribunal did not take into account the information that Mr Zreika claimed had not been disclosed to him. The non-disclosure of that information was accordingly immaterial and did not give rise to any practical injustice. As for the second argument, the primary judge rejected Mr Zreika’s contention that the independent expert failed to take into account any of his claims concerning family violence and that if she did, her error in doing so was immaterial.

4    The question that must be decided on this appeal is whether the primary judge erred in rejecting Mr Zreika’s contentions concerning jurisdictional error on the part of the Tribunal.

BACKGROUND

5    Mr Zreika arrived in Australia on 15 October 2012 as the holder of a Prospective Marriage (Class TO) (Subclass 300) visa. Just over a week later he married his sponsoring partner. About six months later, on 15 April 2013, he applied for a partner visa. His spouse was his sponsoring partner for the purposes of that visa application.

Relevant partner visa criteria

6    At the time Mr Zreika applied for a partner visa, one of the criteria that had to be satisfied at the time of the decision in respect of the application was that the applicant met one of the requirements of either subcll (2), (2A), (3), (4), (5), (6) or (8) of cl 801.221 of Sch 2 to the Migration Regulations 1994 (Cth). Relevantly, cl 801.221(2) included the following requirements: the visa applicant was the holder of a Subclass 820 visa; the applicant continued to be sponsored for the grant of the Subclass 820 visa by the sponsoring partner; and the applicant was the spouse of the sponsoring partner and at least two years had passed since the application was made. Clause 801.221(6) included the following requirements: the applicant was the holder of a Subclass 820 visa; the applicant would meet the requirements of subcl (2) “except that the relationship between the applicant and the sponsoring partner has ceased”; and, relevantly, the applicant “has suffered family violence committed by the sponsoring partner”.

The relationship ends

7    Unfortunately for Mr Zreika, it would appear that his relationship with his sponsoring partner ended within a year of his visa application. On 13 May 2014, the sponsoring partner contacted the Department of Immigration and Border Protection and advised that she had been separated from Mr Zreika for a couple of months. Either on 13 May 2014, or at some time shortly thereafter, the sponsoring partner sent an email to the Department which appears to have attached or included a letter which stated as follows:

Dear who it may concern;

I am writing in regards of a spouse visa application.

I am writing to withdraw the application because I am no longer in a relationship with my husband Midhat Ahmed Zreika. I have been separated from him now for a couple of months now and I want to make it final. Since his arrival in Australia Midhat has had a total personality change and is always abusive towards my family and I. He has played with my emotions many time and he always makes feel down and depressed.

I found out he was using me, and using the Australian system so he can be a citizen and not leave the country, and after he is a citizen he will leave me.

I have not had any contact with him for a couple of months now we are living separate lives.

I know [sic] live with my parents [redacted]

I would like him to be out of the country because I don’t feel safe here with his abusive yelling at me constantly and it can lead to physical violence, he only used and manipulated me.

I no longer want to have relationship with that person and I would appreciate it if you notify me of what happens.

…

8    As will be seen, a delegate of the Minister later certified, pursuant to s 376 of the Act, that the disclosure of this letter (the sponsor’s letter) would be contrary to the public interest on the basis that it contained “adverse information disclosed by the sponsor”.

9    In the meantime, the Department did disclose some of the information in the sponsor’s letter to Mr Zreika soon after it was received. On 16 May 2014, the Department wrote to Mr Zreika and advised him that it had received information that the relationship between him and his sponsoring partner had ended. The letter also advised that before a decision was made in relation to his visa application, Mr Zreika had the opportunity to comment on the information that his relationship had ended. The letter stated that if Mr Zreika chose to respond, he was required to do so in writing and within 28 days.

10    As can be seen, the Department’s letter dated 16 May 2014 did not disclose to Mr Zreika all of the information in the sponsor’s letter. In particular, it did not disclose that: the sponsor had said that Mr Zreika was “always abusive” to the sponsor and her family; or that, according to the sponsor at least, Mr Zreika was “using” the sponsor and the “Australian system so he can be a citizen and not leave the country”; or that the sponsor alleged that she did not feel safe because Mr Zreika was “abusive” and yelled at her constantly which “can lead to physical violence”. As will be addressed in detail later, it was the non-disclosure of that additional information in the sponsor’s letter, at least until very late in the decision-making process, which Mr Zreika claimed constituted, or gave rise to, a jurisdictional error on the part of the Tribunal.

Allegations of family violence

11    Mr Zreika took up the Department’s invitation to comment on the information disclosed in its letter dated 16 May 2014. On 6 June 2014, Mr Zreika’s lawyers wrote to the Department and advised that the relationship between Mr Zreika and the sponsor had ceased, but that Mr Zreika wanted his application to be considered despite the breakdown of the relationship on the basis that he had suffered family violence “committed by the sponsoring partner”. The lawyers noted that Mr Zreika was gathering information and evidence concerning the alleged family violence and sought a two week extension of time in which to respond to the 16 May 2014 letter.

12    On 11 July 2014, Mr Zreika’s lawyers again wrote to the Department. The letter enclosed, amongst other things, a detailed statutory declaration from Mr Zreika which specifically responded to the information contained in the Department’s letter. That response, in short, confirmed that Mr Zreika’s relationship with his sponsoring partner had indeed ended in March 2014. Importantly, however, Mr Zreika also claimed in his statutory declaration that he had suffered family violence committed by his sponsoring partner. It was submitted on Mr Zreika’s behalf that he therefore satisfied cl 801.221(6) of Sch 2 to the Regulations.

13    It is unnecessary to detail all of Mr Zreika’s claims concerning family violence. His statutory declaration was quite lengthy. He also provided other information and documents to the Department, including statutory declarations provided by other persons which supported his claims. Subsequently, in October 2014, Mr Zreika’s lawyers provided the Department with a statutory declaration from a social worker. That statutory declaration provided a lengthy list of the incidents of family violence that Mr Zreika had apparently told the social worker about. Relevantly, that list of incidents included the following alleged incident:

A few weeks later “another major incident” took place when he returned home from work to find Ms Zreika was not home and had not left him a note to tell him where she was. Her parents home was only a few blocks away and thinking she was there he decided to go to their place. He phoned her while on his way to see what her plans for that evening were. He arrived at her parents home while on the phone with her however she became “very abusive” and “involved her family” against him with her brother “coming out of the house and pushing him” yelling “stop calling her”. Ms Zreika’s brother was violent towards Mr Zreika and this caused him to fear for his safety.

14    As will be seen later, Mr Zreika contended that the independent expert who provided an opinion to the Tribunal did not address this particular claim. It was on that basis that Mr Zreika contended that the independent expert’s opinion was not “authorised by the regulations” and that the Tribunal, in finding itself bound by the opinion, “committed jurisdictional error”.

15    The correspondence between the Department and Mr Zreika’s lawyers continued over the following months. That correspondence included a further disclosure by the Department of adverse information by letter dated 12 May 2015. That information was said to include that a statement that Mr Zreika had made in his submissions concerning his family violence claims about when and how he had met the sponsor was inconsistent with information that Mr Zreika had provided in the context of an earlier partner visa application which was subsequently withdrawn. Mr Zreika’s lawyers responded to that letter by requesting that the Department “provide the relevant folios” referred to in the Department’s letter in the “interests of natural justice”. Mr Zreika’s lawyers also made a freedom of information application on Mr Zreika’s behalf in respect of the information referred to in the Department’s letter dated 12 May 2015.

The delegate’s decision

16    On 1 April 2016, a delegate of the Minister refused Mr Zreika’s application for a partner visa. It is unnecessary to consider the delegate’s reasons for refusing the application. It suffices to note that the delegate was not satisfied that Mr Zreika met the requirements of any of subcll 801.221(2), (2A), (3), (4), (5), (6) or (8) of Sch 2 to the Regulations. As for subcl 801.221(6), the delegate noted that Mr Zreika had not made any claims nor provided evidence regarding any incidence of family violence. That was plainly incorrect. It would seem that, perhaps by reason of the large volume of correspondence over the previous almost two years, the delegate had somehow overlooked the contents of Mr Zreika’s lawyers’ letters of July and October 2014. The delegate also noted that Mr Zreika had not provided any response to the Department’s letter dated 12 May 2015.

The section 376 certificate

17    On 29 April 2016, no doubt prompted by Mr Zreika’s application to the Tribunal, which is referred to next, a person who was said to be a delegate of both the Minister and the Secretary of the Department signed a document addressed to the Tribunal which was headed “Certificate Regarding Administrative Appeals Tribunal’s Discretion To Disclose Certain Information Under s376 Of Migration Act 1958”. This document may conveniently be referred to as the certificate. The certificate notified the Tribunal that s 376 applied to a particular “folio” (identified as “folio 91”) in a file and certified that disclosure of that “material” would be “contrary to the public interest”. Under the subheading “Relevant advice about the significance of the document or information”, the document stated: “[a]s disclosure of the identified material is subject to the Administrative Appeals Tribunal’s discretion, I provide the following advice in relation to its significance”. The advice was that the identified folio “contains adverse information disclosed by the sponsor”.

18    It is unnecessary to endeavour to make sense of the somewhat garbled and unhelpful contents of the certificate. It suffices to note that the Minister conceded, both in the Circuit Court and on appeal, that the certificate was invalid. That concession was properly made. Amongst other things, the certificate did not properly certify either of the matters referred to in ss 376(1)(a) or (b) of the Act. Nor could it reasonably be accepted that the contents of folio 91 met the precondition in s 376(1)(a).

19    The document identified as folio 91 in the certificate was the sponsor’s letter to the Department.

IN THE TRIBUNAL

20    Mr Zreika lodged an application for review of the delegate’s decision in the Tribunal on 20 April 2016. He submitted a large number of documents to the Tribunal in support of his review application, including documents detailing his allegations of family violence.

The first hearing – Disclosure of the s 376 certificate

21    On 6 March 2016, Mr Zreika and his lawyer attended a hearing conducted by the Tribunal.

22    Towards the commencement of the hearing, there was an exchange between the Tribunal and Mr Zreika’s lawyer concerning documents that had been submitted on Mr Zreika’s behalf. Those documents were said to relate to certain adverse information that was referred to by the delegate. In that context, the Tribunal provided the following information concerning the s 376 certificate:

MEMBER: Yes. On the Department file there is also a 376 certificate and that is attached to – the 376 certificate given – in terms of the 376 as you’d be aware is information that can be released at the discretion of the Member and it related to information in folio 91. Folio 91 of the Department file was the notification from the former spouse of the visa applicant that they were no longer in a relationship.

23    Mr Zreika’s lawyer asked the Tribunal whether the information in the document covered by the certificate concerned Mr Zreika’s previous visa application or the “current” application. The Tribunal advised that it concerned the current application. The discussion then returned to what was said to be adverse comments made in the delegate’s decision.

24    Two things should be noted concerning the Tribunal’s disclosure of the existence of the certificate and the document or information covered by it. As has already been made clear, the document covered by the certificate was the sponsor’s letter.

25    First, it would appear that the Tribunal exercised its discretion under s 376(3)(b) of the Act to disclose to Mr Zreika information contained in the sponsor’s letter, being the document covered by the certificate. That said, the information disclosed by the Tribunal was limited and did not include all of the information in the sponsor’s letter. As was the case with the Department’s earlier disclosure, the Tribunal’s disclosure did not include the sponsor’s claims that Mr Zreika had been abusive to her and her family and that Mr Zreika was using her and the Australian system so that he could obtain citizenship. As has already been noted, the limited nature of the Tribunal’s disclosure was central to Mr Zreika’s contentions both in the Circuit Court and in support of his appeal.

26    Second, Mr Zreika’s lawyer, having been advised of the existence of the s 376 certificate and the general nature of the document or information which it covered, did not challenge the validity of the certificate, or ask to see the document covered by it, or ask any further questions concerning the information said to be in that document. That may well have been because the information that was disclosed by the Tribunal was not in dispute. Indeed, the Tribunal indicated that “identical information” to the information contained in folio 91 was available at “folio 56” which was “not subject to a s 376 certificate”, which may have given the impression that such information had therefore already been disclosed. And, by this time, things had moved on and Mr Zreika had confirmed that his relationship with the sponsor was at an end. His application hinged on his allegations concerning family violence.

27    Following the Tribunal’s disclosure of the existence of the certificate, Mr Zreika gave evidence before the Tribunal, including evidence about his relationship with the sponsor and his allegations of family violence. Evidence was also taken from two witnesses at Mr Zreika’s request.

28    Towards the conclusion of the hearing, after the Tribunal had heard evidence from both Mr Zreika and his witnesses, the Tribunal stated that “[t]his is a matter that will need to go to an independent expert”. That was an apparent reference to the Tribunal determining that it was necessary in the circumstances for it to seek the opinion of an independent expert about whether Mr Zreika had suffered relevant violence. That requirement arose under reg 1.23 of the Regulations.

Regulation 1.23 and the opinion of the independent expert

29    Division 1.5 of Pt 1 of the Regulations contains special provisions relating to family violence. Most importantly, reg 1.23 explains when a person, the alleged victim, is taken to have suffered family violence and when another person, the alleged perpetrator, is taken to have committed family violence in relation to the alleged victim.

30    Relevant to the circumstances of this case, reg 1.23(10) provides, in summary, that if a visa application includes a “non-judicially determined claim of family violence”, the Minister must consider whether the alleged victim has suffered the relevant family violence. If the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis. If, however, the Minister is not satisfied that the alleged victim has suffered the relevant family violence, the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence. The Minister must also take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa.

31    It was common ground that Mr Zreika’s visa application included a “non-judicially determined claim of family violence” as defined in reg 1.23(9). It is accordingly unnecessary to consider the terms of that definition.

32    Subregulation 1.23(13) provides, in effect, that where the Minister is required to take as correct an opinion of an independent expert that the alleged victim has suffered the relevant family violence, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence. Subregulation 1.23(14) relevantly provides, however, that for reg 1.23(13), the relevant violence, or part of it, “must have occurred while the married relationship … existed between the alleged perpetrator and the spouse … of the alleged perpetrator”.

33    As was noted earlier, towards the end of the first Tribunal hearing, the Tribunal noted that the matter was one which would need to go to an independent expert. It follows that the Tribunal must not have been satisfied that Mr Zreika had suffered the relevant family violence. Were it otherwise, the Tribunal would not have been required to seek the opinion of an independent expert.

34    The Tribunal subsequently sought the opinion of an independent expert in accordance with reg 1.23(10). Mr Zreika was in due course interviewed by that expert, a psychologist. The expert furnished a report on 26 May 2017. That report included the expert’s opinion that the family violence alleged by Mr Zreika had not occurred. It is unnecessary at this point to detail the expert’s reasons for arriving at this conclusion.

35    On 8 June 2017, the Tribunal provided Mr Zreika, through his lawyers, with a copy of the expert’s report and invited him to comment on it. Mr Zreika’s lawyers in due course accepted that invitation and provided detailed written submissions which responded to the expert report. Those submissions included a claim that the expert had misconstrued and applied too narrow a definition of “relevant family violence” and had failed to consider all of the incidents of family violence that Mr Zreika had claimed had occurred. It was submitted that the “matter” ought to be referred back to the independent expert for further consideration in light of the submissions.

36    One of the claims that was said not to have been addressed by the expert was a claim that the sponsor had “involved her family” against Mr Zreika and that the sponsor’s brother had assaulted and yelled at him, causing him to fear for his safety. Details of that claim were included in the statutory declaration of the social worker, referred to earlier, that Mr Zreika had furnished to the Department in support of his visa application.

37    The Tribunal accepted that the expert should provide a further opinion which addressed the matters raised in the submissions made on Mr Zreika’s behalf. The expert in due course furnished a supplement to her report which addressed those matters. As for the contention that an overly narrow definition of family violence had been adopted, the expert stated that “all conduct identified by [Mr Zreika] as creating fear or apprehension for safety or wellbeing” had been considered. As for Mr Zreika’s claim concerning violence perpetrated by the sponsor’s brother, the expert stated:

Mr Zreika did not disclose that his brother-in-law was instructed by the sponsor or that the sponsor some how otherwise “involved” her family in their disputes. Thus, there was no evidence during the interview to suggest that the acts perpetrated by Mr Zreika’s brother-in-law would be considered relevant family violence. Mr Zreika did describe an incident that occurred between himself and his brother-in-law but he maintained that occurred after the break down of the relationship, which would not be considered relevant family violence. Mr Zreika confirmed the incident happened after the relationship with the sponsor broke down as he was seeking to reunite with the sponsor at that time. He did not indicate that the sponsor instructed her brother to commence an argument with Mr Zreika.

38    The Tribunal provided the expert’s further report to Mr Zreika, through his lawyers, and again invited Mr Zreika to provide any comments he wished to make in response to it. Mr Zreika, through his lawyers, again accepted that invitation and again provided detailed written submissions concerning the expert’s opinions. Those submissions maintained that the expert had misconstrued the term “relevant family violence” and had failed to consider all the claimed incidents of family violence. It was also claimed, for the first time, that the expert had not been provided with all of the documents that Mr Zreika had provided to the Tribunal in support of his family violence claim.

Provision of the document covered by the s 376 certificate

39    No doubt for the purpose of making good the claim that the expert had not been provided with all of the documents that Mr Zreika had provided to the Tribunal, Mr Zreika’s lawyers requested the Tribunal to provide, pursuant to s 362A of the Act, all of the written material given to the Tribunal for the purposes of the review. The Tribunal responded to that request. The Tribunal’s response, which was by letter dated 6 September 2017, granted Mr Zreika access to all of the relevant written material that had been provided to the Tribunal. That included, relevantly, a copy of the s 376 certificate and a partially redacted copy of the document that was the subject of that certificate: the sponsor’s letter. There was and is no issue concerning the redacted portion of the sponsor’s letter, which appears to be the sponsor’s parents’ address.

40    This was the first time that Mr Zreika or his lawyers had seen the sponsor’s letter. The Tribunal’s letter of 6 September 2017 did not advise Mr Zreika that the information in that document was adverse information, in the sense that it might be a reason why the Tribunal might refuse his visa application. It also did not invite Mr Zreika to comment on the sponsor’s letter or the information contained in it.

41    As events transpired, neither Mr Zreika nor his lawyers raised any complaint about not having seen the sponsor’s letter before. Nor did they make any submissions or comments about any of the information contained in the sponsor’s letter. The available inference is that, at this point at least, neither Mr Zreika nor his lawyers regarded any of the information in the sponsor’s letter, or the fact that they had not previously been aware of it, to be of any significance or relevance to the review application.

The second Tribunal hearing

42    On 28 September 2017, the Tribunal invited Mr Zreika to attend a further hearing. Mr Zreika and his lawyer attended that hearing on 25 October 2017. Mr Zreika also provided the Tribunal with a report prepared by a social worker which responded to the expert’s reports concerning Mr Zreika’s family violence claims.

43    At the commencement of the hearing, the Tribunal went through the history of Mr Zreika’s review application, including, in particular, the provision of the expert report concerning Mr Zreika’s family violence allegations, Mr Zreika’s submissions in response to that report, the expert’s provision of supplement to the report and Mr Zreika’s further written submissions in response to that supplementary report. The Tribunal then said:

I then set the matter down for hearing as to whether or not you wished to make further submissions before the Tribunal considered its decision. So, essentially, this is a hearing to afford you procedural fairness, to give you the opportunity to make submissions with all the material that is currently before me.

44    The Tribunal then invited Mr Zreika or his lawyer to make any further submissions that they wished to make. It is unnecessary to detail those submissions. It suffices to note that no reference was made to the sponsor’s letter, or the information in it, or to the fact that it had not been provided to Mr Zreika prior to the first Tribunal hearing. Nor was it claimed that the sponsor’s letter had not been provided to the expert.

The Tribunal’s decision

45    On 11 January 2018, the Tribunal affirmed the delegate’s decision to refuse Mr Zreika’s partner visa application. The Tribunal found, in short, that Mr Zreika was not taken to have suffered family violence committed by the sponsor. He therefore did not meet the criteria for the grant of a partner visa.

46    Given the scope of Mr Zreika’s judicial review application in the Circuit Court and his grounds of appeal, it is necessary to refer to only three aspects of the Tribunal’s Statement of Decision and Reasons.

47    First, the Tribunal referred to the s 376 certificate as follows (Reasons at [38]):

The Tribunal advised Mr Zreika that there is information on the Department file subject to a certificate under s.376 of the Act which relates to information provided to the Department by the sponsor at the time of the breakdown of the relationship. The Tribunal considers that the certificate is valid; however the relevant adverse information contained in the information was put to Mr Zreika by the Department on 16 May 2014 when he was invited to respond to [the sponsor’s] allegations regarding the breakdown of the relationship. Mr Zreika responded in detail to those allegations in his statutory declaration of 11 July 2014.

48    Second, the Tribunal gave the following reasons for why it was not satisfied, for the purposes of reg 1.23(10) of the Regulations, that Mr Zreika had suffered the relevant family violence and why it accordingly sought the opinion of an independent expert about that matter (Reasons at [50]-[52]):

The Tribunal took into consideration the various materials on the Department file, including the statutory declaration by Mr Zreika, the statutory declaration and medical report by the competent persons, the opinion of the independent expert and the sponsorship withdrawal letter by [the sponsor]. The Tribunal also had regard to Mr Zreika’s oral evidence.

Mr Zreika’s oral evidence about [the sponsor’s] conduct during the couple’s marriage was vague and confused. He spoke of the lack of respect his wife showed to him particularly in front of other people and of how that made him feel. The Tribunal considers that Mr Zreika has embellished his story since he first made his claim. The Tribunal did not find Mr Zreika’s account of the alleged family violence to be convincing or credible in that when pressed for details of the incidents relied on he was unable to recall with any specificity.

Having considered all of the evidence before it, the Tribunal was not satisfied for the purpose of r. 1.23 that Mr Zreika has suffered relevant family violence as defined. In accordance with that regulation, the Tribunal sought the opinion of an independent expert.

49    Third, the Tribunal referred to the independent expert’s report and addressed the submissions that had been advanced on Mr Zreika’s behalf concerning the report and the expert’s opinion expressed therein. Relevantly, the Tribunal rejected Mr Zreika’s contention that the expert did not take all of the evidence into account (Reasons at [58]) and found that the expert’s opinion was “authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made” (Reasons at [63]). The Tribunal noted that it was required under reg 1.23 to take the expert’s opinion to be correct and accordingly found that Mr Zreika was “not taken to have suffered family violence committed by [the sponsor]”.

IN THE CIRCUIT COURT

50    Mr Zreika ultimately pressed only two grounds in support of his application for judicial review of the Tribunal’s decision.

51    The first ground was that the Tribunal “proceeded or acted upon [an] invalid certificate or denied [Mr Zreika] procedural fairness”. The particulars to that ground confirmed that the alleged “invalid certificate” was the certificate dated 29 April 2016 which was signed by a delegate of the Minister purportedly pursuant to s 376 of the Act. The particulars did not identify precisely how it was said that the Tribunal denied Mr Zreika procedural fairness.

52    As has already been noted, the Minister conceded before the primary judge that the certificate was invalid. It is, however, unclear precisely how Mr Zreika put his case before the primary judge concerning jurisdictional error based on the invalidity of the certificate. It would appear from the primary judge’s reasons that the main argument that was advanced by Mr Zreika in the Circuit Court was that adverse information in the document covered by the certificate, the sponsor’s letter, was not disclosed to him because of the existence of the invalid certificate. While it is somewhat unclear from the primary judge’s reasons, the adverse information that was said not to have been disclosed appeared to be the sponsor’s claims, in the letter, that Mr Zreika was abusive towards her and her family and that he had “used” her and the “Australian system” to obtain citizenship.

53    The second ground relied on by Mr Zreika in the Circuit Court was that “the Tribunal erred in finding that it was required under subparagraph 1.23(10)(c)(ii) of the Regulations to take as correct the opinion in the report of the ‘independent expert’ in circumstances where that report was not authorised by the Regulations”. No particulars were provided concerning the basis of the contention that the independent expert’s report was not “authorised by the Regulations”. It would appear, however, that the main argument that was advanced on Mr Zreika’s behalf was that the report was not authorised by the Regulations because the expert had failed to take into account all of Mr Zreika’s claims of family violence.

54    It was contended, in that regard, that the expert had not considered the claim, identified in one of the statutory declarations of the social worker which Mr Zreika provided to the Department, to the effect that the sponsor’s brother was violent towards Mr Zreika and that Mr Zreika feared both the sponsor and her family. Mr Zreika’s argument appeared to be that the expert ignored that claim because it was said to have occurred after the relationship had ended.

55    The primary judge rejected both of Mr Zreika’s grounds of review: Zreika v Minister for Home Affairs & Anor [2019] FCCA 599 (Judgment).

56    In relation to the first ground, the primary judge appears to have found, in effect, that the Tribunal disclosed to Mr Zreika all of the information in the sponsor’s letter that it considered to be adverse to Mr Zreika. That information was that the relationship between the sponsor and Mr Zreika had ended. The primary judge found that the balance of the information in the sponsor’s letter was not “perceived” by the Tribunal to be adverse (Judgment at [20]) and was not “taken into account” by the Tribunal: Judgment at [22]-[24]. The primary judge also found that the “other content” of the sponsor’s letter was “immaterial to the Tribunal in the determination of the review” and that no “practical injustice arose from the other content”: Judgment at [26]. While the primary judge did not say so in terms, the latter finding appeared to relate to, and effectively dispose of, Mr Zreika’s contention that he was denied procedural fairness.

57    As for the second ground, the primary judge rejected Mr Zreika’s contention that the Tribunal had failed to consider Mr Zreika’s claims concerning the incident that was said to have occurred between him and the sponsor’s brother: Judgment at [33]-[35]. His Honour found that the expert took into account “all the circumstances in the determination of whether there was the requisite family violence”: Judgment at [34]. The primary judge also found that, even if the expert’s report could be read in such a way that it indicated that the expert had ignored the claim concerning the incident with the sponsor’s brother because it occurred after the end of the relationship, that error was “immaterial” and did not support a finding of “jurisdictional error by the expert”: Judgment at [36]-[37].

APPEAL GROUNDS

58    Mr Zreika advanced two grounds of appeal.

59    The first ground was that the primary judge “erred in finding that the invalid notification, that section 376 of the Migration Act 1958 applied to a dob-in letter from the former spouse, was immaterial and ought to have found that the invalid notification was material, resulting in the [Tribunal] committing jurisdictional error”. The so-called “dob-in” letter was the sponsor’s letter.

60    Mr Zreika argued, in support of this ground of appeal, that the Tribunal’s reasons showed that the “invalid notification” was material because the Tribunal stated that it “took into consideration”, amongst other things, “the sponsorship withdrawal letter” by Mr Zreika’s former partner and sponsor: Reasons at [50]. Mr Zreika pointed out that he was not provided with a copy of the sponsor’s letter until after the Tribunal had found that it was not satisfied that Mr Zreika had suffered relevant family violence committed by the sponsor. In those circumstances, so Mr Zreika submitted, it could not be said that the invalid notification did not deny him of a “favourable outcome”. That was because it could not be said that the Tribunal’s assessment of his credibility and the plausibility of his claims would necessarily have been the same if it had not treated the invalid notification as being valid and had “followed a procedure contrary to law”.

61    Mr Zreika also appeared to place some reliance on the fact that the sponsor’s letter was, so he claimed, not provided to the expert. He argued that, even though the letter was adverse to him, if it had been provided to the expert it nonetheless could have led the expert to form a different opinion about whether he had suffered relevant family violence. It should be noted that this was not an argument that appears to have been put to the primary judge.

62    Mr Zreika’s second ground of appeal was that the primary judge “erred in finding that the independent expert under paragraph 1.23(10)(c) of the Migration Regulations 1994 had considered [Mr Zreika’s] claim that the former spouse ‘involved’ her brother-in-law in their dispute, or that the failure to consider that claim was immaterial”. Mr Zreika contended that the primary judge “ought to have found that the opinion of the independent expert was not authorised by the regulations (and [the Tribunal] committed jurisdictional error in finding itself bound by that opinion) because the independent expert proceeded on the basis that the claimed incident could not be taken into account because it ‘occurred after the break down of the relationship’”.

63    Mr Zreika argued, in support of this ground, that all claims of family violence must be considered by an independent expert, including violence which did not occur during the relationship. In his submission, the expert clearly stated in her report that the incident with the sponsor’s brother was not relevant family violence because it occurred after the breakdown of the relationship. The primary judge’s finding that the expert took into account all of the circumstances was therefore wrong.

GROUND ONE – WAS THE “INVALID NOTIFICATION” IMMATERIAL?

64    As has already been noted, the Minister conceded before the primary judge that the certificate that had been signed by his delegate on 29 April 2016, purportedly pursuant to s 376(1) of the Act, was invalid. That concession was properly made. It is difficult to see how the reason given in the certificate for why disclosure of the sponsor’s letter would be contrary to the public interest, which was that it contained “adverse information disclosed by the sponsor”, could alone possibly “form the basis for a claim by the Crown in the right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed”: s 376(1)(a). Indeed, the certificate did not, in terms, certify that to be the case.

65    The delegate of the Minister who signed the certificate, who was also a delegate of the Secretary of the Department, notified the Tribunal, in accordance with s 376(2)(a) of the Act, that s 376 applied in relation to the document and the information in it. Because the certificate was invalid, so too was that notification. The delegate also gave the Tribunal advice about the “significance” of the document or information, in accordance with s 376(2)(b) of the Act, that advice being that the document contained “adverse information disclosed by the sponsor”. The advice did not identify exactly what that adverse information was.

66    In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, the High Court considered, amongst other things, the implications of an invalid certificate given by the Minister, purportedly pursuant to s 438(1) of the Act, which was notified to the Tribunal by the Secretary pursuant to s 438(2) of the Act. Section 438 of the Act was in relevantly the same terms as s 376 of the Act. The majority (Bell, Gageler and Keane JJ) found (at [39]) that if none of the preconditions in s 438(1) were met in relation to a document or information, the section had no application in relation to the document or information, the Secretary had no duty or authority under s 438(2)(a) to notify the Tribunal that s 438 applied and the Tribunal had no authority to exercise either of the powers conferred under s 438(3) in relation to it. The notification by the Secretary in those circumstances was, according to the majority (at [40]), “a purported exercise of statutory authority that is devoid of legal effect in relation to that document or information”.

67    More significantly, for present purposes, the majority in SZMTA held (at [44]) that the “Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review”. It did not, however, necessarily follow that the Tribunal’s decision was invalid. That is because “the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material”: SZMTA at [44].

68    The majority in SZMTA similarly explained (at [45]) that where there has been a “breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification”, materiality is “essential to the existence of jurisdictional error” and that a “breach is material to a decision only if compliance could realistically have resulted in a different decision”. As for how the materiality of a breach can be established, the majority held that the question of materiality of the breach is “an ordinary question of fact in respect of which the applicant bears the onus of proof” and “[l]ike any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application”: SZMTA at [46]. In that context, the drawing of inferences “can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act”: SZMTA at [47].

69    Having regard to the reasoning of the majority in SZMTA, it may be accepted, in this case, that the invalid notification by the Secretary that s 376 of the Act applied to the sponsor’s letter, or the information in it, was a breach of an inviolable limitation governing the conduct of the review. It is clear that the Tribunal proceeded on the basis that both the certificate and the notification in it were valid. It was wrong to do so.

70    The critical question, however, is whether the “breach” arising from the invalid notification and the Tribunal’s acceptance of it was material. Can it realistically be said that, if the breach had not occurred, there could have been a different decision by the Tribunal?

71    The short answer to that question is “no”.

72    While not fully articulated, Mr Zreika’s contention that the breach was material appeared to proceed by the following steps: first, the document covered by the certificate, the sponsor’s letter, contained adverse information over and above the information that the Tribunal disclosed to him at the hearing; second, but for the invalid certificate and notification, the Tribunal would have been obliged to disclose that additional adverse information to him for comment, or perhaps given him a copy of the letter; third, if the additional adverse information had been so disclosed, Mr Zreika could and would have made submissions to the Tribunal about it; fourth, those submissions may have persuaded the Tribunal to be satisfied, contrary to the finding it in fact made, that he had been subjected to family violence committed by the sponsor; and fifth, if that had been the case, the Tribunal would not have sought, or been required to seek, the opinion of the independent expert in relation to that question.

73    There are problems with most of the steps in Mr Zreika’s argument.

74    The first problem is that the sponsor’s letter did not include any information, beyond that which was disclosed to him at the hearing, that the Tribunal would have been obliged to disclose to Mr Zreika but for the invalid certificate and notification. Mr Zreika’s submissions did not address the basis upon which it was said that the Tribunal was required to disclose the additional information to him. It appeared to be suggested that the requirement arose by reason of the Tribunal’s obligation to afford procedural fairness to review applicants. It is, however, necessary to consider what the statutory scheme provides in relation to the disclosure of adverse information.

75    Division 5 of Pt 5 of the Act contained provisions relating to the conduct of reviews of a “Part 5-reviewable decision”. The decision in question in this case was a Part 5-reviewable decision. The key provision in Div 5 of Pt 5 of the Act which deals with the disclosure of adverse information is s 359A.

76    Section 359A(1) of the Act provides that the Tribunal must: give to the applicant “clear particulars of any information the Tribunal considers would be the reason, or a part of the reasons, for affirming the decision that is under review”; ensure that the applicant understands why that information is “relevant to the review, and the consequences of it being relied on in affirming the decision that is under review”; and invite the applicant to comment or respond to that information. Section 359A(3) provides, in effect, that the Tribunal is not obliged to give the applicant particulars of information in accordance with s 359A(1) if those particulars are given to the applicant at the hearing in accordance with s 359AA of the Act.

77    The scope of s 359A and the cognate provision in respect of “Part 7-reviewable decisions”, s 424A of the Act, have been considered in numerous decisions of the High Court: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16; SZMTA; Minister for Immigration and Border Protection v CED16 [2020] HCA 24 at [14]. Those cases establish the following relevant principles.

78    First, s 359A and s 424A do not require notice to be given of every matter the Tribunal might think relevant to the decision under review: SZBYR at [15]; SZLFX at [21]. Nor is the Tribunal obliged to provide to the applicant “all of the information which the Tribunal might ultimately take into account in making its decision on the review, much less all of the information contained within the documents given by the Secretary” to the Tribunal: SZMTA at [10].

79    Second, whether or not the condition in s 359A or s 424A — that the information “would be the reason, or part of the reason … for refusing to grant a visa” — is satisfied is to be “determined in advance, and independently, of the Tribunal’s particular reasoning on the facts of the case”: SZBYR at [17]; Plaintiff M174/2016 at [9].

80    Third, for the disclosure obligations in s 359A and s 424A to be engaged, the relevant information should, in its terms, contain a “rejection, denial or undermining” of the claims advanced by the applicant relevant to the visa criterion in question: SZBYR at [17]; SZLFX at [22]. The information must in its terms be of such significance as to lead the Minister, or the Tribunal, as the case may be, “to consider in advance of reasoning on the facts of the case that the information of itself ‘would’, as distinct from ‘might’, be the reason or part of the reason for refusing to grant the visa”: Plaintiff M174/2016 at [9].

81    Fourth, s 359A and s 424A depend on the Tribunal’s “consideration” or opinion that certain information would be the reason or part of the reason for affirming the decision under review: SZLFX at [24]. An applicant seeking to demonstrate the Tribunal’s non-compliance with the disclosure obligation in s 359A or s 424A would, in those circumstances, have to point to some evidence or necessary inference that the Tribunal in fact considered or had an opinion concerning the information in question.

82    There could be no doubt that the Tribunal considered that the information in the sponsor’s letter to the effect that her relationship with Mr Zreika was over would be the reason or part of the reason for affirming the decision under review. That may be inferred from the fact that the Tribunal disclosed that information to Mr Zreika at the hearing. Having disclosed that information at the hearing, the disclosure obligation in s 359A no longer applied to the information by reason of the operation of s 359A(3).

83    It is not difficult to see why or how the Tribunal formed the opinion that information that the relationship between Mr Zreika and the sponsor had ended would have been a reason for affirming the decision under review. That is because that information directly rejected, denied or undermined one of the criteria for the grant of a partner visa to Mr Zreika.

84    It should also be noted in this context that the Department also considered that the information in the sponsor’s letter to the effect that her relationship with Mr Zreika had ended was information which would be a reason for refusing Mr Zreika’s visa application. That is no doubt why the Department disclosed that information to him by its letter dated 16 May 2014. As the Tribunal noted in its reasons, Mr Zreika provided a detailed response to that information in his statutory declaration of 11 July 2014: Reasons at [38].

85    There is, however, no evidence to suggest, and no evidence from which it could be inferred, that the Tribunal considered, or was of the opinion, that any other information in the sponsor’s letter to the Department would be a reason, or part of a reason, for affirming the decision to refuse Mr Zreika’s partner visa application. There is nothing to suggest that the other information in the letter was of such significance as to lead the Tribunal to consider, in advance of reasoning on the facts of the case, that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing the grant of the visa.

86    As has already been noted, the other information in the sponsor’s letter was, in substance, a general claim by the sponsor that Mr Zreika was abusive to her and her family and a general assertion or expression of opinion by the sponsor that Mr Zreika was somehow using her or the system to obtain citizenship. Those very general assertions did not in terms reject, deny or undermine any of Mr Zreika’s relevant claims in support of his visa application. They did not, for example, reject, deny or undermine his claim that he had been the subject of family violence committed by the sponsor. It is also not difficult to infer that the Tribunal was likely to have considered that little or no weight would be likely to be attached to the sponsor’s very general assertions about Mr Zreika.

87    There are also clear indications in the Tribunal’s reasons that the only information in the sponsor’s letter that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, was the information that the relationship had broken down. The Tribunal noted, in its reasons, that the “relevant adverse information” in the sponsor’s letter was “put to” Mr Zreika by the Department on 16 May 2014 “when he was invited to respond to [the sponsor’s] allegations regarding the breakdown of the relationship”: Reasons at [38]. The information that was “put to” Mr Zreika in the Department’s letter dated 16 May 2014 was simply information that Mr Zreika’s relationship had ended. It is clear that the Tribunal considered that to be the only “relevant adverse information”.

88    Nothing that occurred at the Tribunal hearings, and nothing in the Tribunal’s reasons, suggest that the Tribunal considered, let alone gave any weight to, any other information in the sponsor’s letter. It is abundantly clear from the Tribunal’s reasons that its finding that it was not satisfied that Mr Zreika had been the victim of family violence committed by the sponsor was based entirely on what the Tribunal considered to be inadequacies with Mr Zreika’s oral evidence on that topic. The Tribunal found that his evidence was “vague and confused” and that his account of the alleged family violence was not “convincing or credible” because, when pressed, he was unable to recall details of the incidents with any specificity: Reasons at [51]. There is nothing to suggest that the Tribunal’s findings were based in any way on anything the sponsor had said in her letter or anywhere else.

89    It should also be emphasised in this context that the Tribunal’s finding was that Mr Zreika’s evidence about the alleged family violence was not credible. The Tribunal did not find that Mr Zreika was not a credible witness generally. The apparent suggestion, in Mr Zreika’s submissions, that the information in the sponsor’s letter somehow fed into an adverse credibility finding by the Tribunal in relation to Mr Zreika accordingly has no merit.

90    It is true that the Tribunal did say in its reasons that it took into account material on the “Department file”, including “the sponsorship withdrawal letter”: Reasons at [50]. It does not follow, however, that the Tribunal considered, let alone gave any weight to, any of the information in that letter other than the information that the relationship between the sponsor and Mr Zreika was at an end. As has already been discussed, none of the other information in the sponsor’s letter bore on the question whether Mr Zreika had been the victim of family violence.

91    There was and is, in all the circumstances, no basis upon which to conclude that any of the information in the sponsor’s letter to the Department, over and above the information that the sponsor’s relationship with Mr Zreika had ended, was information that, but for the existence of the invalid certificate and notification, the Tribunal would have been obliged to disclose to Mr Zreika pursuant to s 359A of the Act.

92    Nor is there any basis for finding that procedural fairness generally, or the natural justice hearing rule specifically, would have obliged the Tribunal to disclose any other information in the sponsor’s letter to Mr Zreika. That is all the more so given that s 357A of the Act provided that Div 5 in Pt 5 of the Act, which included s 359A of the Act, is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. There is, in those circumstances, no basis upon which to imply into the procedure by which the Tribunal was to conduct its review some more general requirement on the part of the Tribunal to disclose to Mr Zreika the additional information in the sponsor’s letter.

93    The second problem with Mr Zreika’s arguments concerning materiality concerns his suggestion that if the other information in the sponsor’s letter had been disclosed to him, he would have been able to make submissions to the Tribunal about that information which may have persuaded the Tribunal to be satisfied that he had in fact been a victim of family violence committed by the sponsor. Even putting aside the fact that the Tribunal appears to have given no significance or weight to any of the undisclosed information in the sponsor’s letter, it is impossible to imagine what further submissions Mr Zreika could have made, over and above those that he did make, to address the general assertions by the sponsor in her letter to the effect that Mr Zreika was abusive to her and her family and that he was using her and the system to get citizenship.

94    The undisclosed information in the sponsor’s letter could, at its very highest, perhaps be said to relate in some respects to the nature of the relationship between the sponsor and Mr Zreika. By the time of the first hearing before the Tribunal, Mr Zreika had lodged voluminous documentary evidence and submissions, both with the Department and the Tribunal, which directly addressed the nature of his relationship with the sponsor and its breakdown. He also gave oral evidence on that very issue at the hearing. While Mr Zreika may not have known the precise content of the sponsor’s letter at the time of the first Tribunal hearing, his detailed evidence and submissions nevertheless plainly addressed the substance of all of the information in the letter. It was clear from the evidence and submissions relied on by Mr Zreika that his case was that his relationship with the sponsor was a genuine relationship and that it was the sponsor who was abusive towards him, not the other way around. His case clearly was that he was not in any way simply “using” the sponsor or the “system” to obtain citizenship. It is difficult to imagine what more Mr Zreika could have said even if he had known the full content of the sponsor’s letter.

95    It should also be noted, in this context, that when Mr Zreika was given a copy of the sponsor’s letter in September 2017, prior to the second Tribunal hearing, he made no submissions and raised no issue concerning it at the second Tribunal hearing. It is true that by this time the Tribunal had already found that it was satisfied that there was no relevant family violence and had sought the opinion of an independent expert. Nevertheless, it might reasonably be expected that if Mr Zreika or his lawyer considered that the letter contained information which had not previously been disclosed and which warranted some specific response, that response, or a complaint about not having had the opportunity to have provided that response sooner, would have been raised before the Tribunal at the second hearing.

96    The final problem with Mr Zreika’s arguments concerning materiality is that there is no sound basis for finding, in all the circumstances, that anything Mr Zreika could have said in relation to the information in the sponsor’s letter could realistically have resulted in a different finding by the Tribunal concerning his allegations of family violence.

97    It may be accepted that the question is not whether any further evidence or submissions Mr Zreika may have given or made would have affected the Tribunal’s finding concerning family violence. Rather, the question is whether anything further Mr Zreika could have said could have resulted in the making of a different decision: EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 99; [2019] FCAFC 20 at [42] citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [31]. As has already been noted, however, it is difficult to imagine what more Mr Zreika could have said concerning the nature of his relationship with the sponsor. In all the circumstances, and given the findings that were made by the Tribunal concerning Mr Zreika’s evidence, it is even more difficult to imagine that anything more that Mr Zreika could have said in specific response to the undisclosed information in the sponsor’s letter could have made any difference to the Tribunal’s view concerning Mr Zreika’s evidence and its findings concerning his claims of family violence.

98    As for Mr Zreika’s argument based on the fact that the sponsor’s letter to the Department was not provided to the independent expert, there is considerable merit in the Minister’s submission that this argument effectively amounts to a new ground of review that was not advanced before the primary judge. There was no suggestion that Mr Zreika argued, before the primary judge, that the breach arising from the invalid notification was a material breach because it resulted in the sponsor’s letter not being provided to the independent expert. Mr Zreika’s contention that this argument is simply an argument as to why the primary judge erred in finding that the relevant breach was immaterial has no substance. The materiality case that Mr Zreika advanced before the primary judge focussed entirely on the supposed relevance of the undisclosed information to the Tribunal’s decision.

99    The Minister did not directly oppose the grant of leave to permit Mr Zreika to raise this argument. Nor did he submit that he was prejudiced in any way, or unable to respond to it. It does not necessarily follow that leave should be granted. The question of leave is, however, somewhat otiose. That is because this new argument is entirely without merit.

100    The first problem for Mr Zreika is that there is no evidence and no reason to conclude that the sponsor’s letter was not provided to the independent expert, let alone that it was not provided because the Tribunal considered that the s 376 certificate and notification precluded it from providing the letter to the expert. Section 376 of the Act did not expressly provide that the Tribunal was prevented or precluded from providing a document covered by the certificate to an independent expert, or indeed anyone else. It is true that s 376(3)(b) gave the Tribunal a discretion to disclose the relevant document to the applicant or any other person who had given evidence to the Tribunal. That might perhaps suggest that the Tribunal did not have the discretion to disclose it to anyone else. Curiously, however, unlike provisions like s 375A(2)(b) of the Act, s 376 did not state, in terms, that the Tribunal must not disclose the relevant document.

101    Putting the terms of s 376 of the Act to one side, there was no evidence to suggest that the Tribunal considered that it was precluded by the certificate from providing the sponsor’s letter to the independent expert, or that it did not give the letter to the expert. Nor was there any evidence to suggest that the letter was not given to the expert. It follows that Mr Zreika’s argument is based on a premise or assumption that is entirely unsupported by the evidence.

102    The second and perhaps even more fundamental problem with the argument is that the suggestion that the provision of the sponsor’s letter to the independent expert could have resulted in a different opinion being reached by the expert is entirely speculative and unrealistic. On Mr Zreika’s case, the sponsor’s letter contained information that was adverse to Mr Zreika. It is entirely unclear why, in those circumstances, the information in the letter could somehow have led the independent expert to find that Mr Zreika had in fact suffered family violence committed by the sponsor. It is not enough to opine, as Mr Zreika did in his submissions, that it is not known what the expert may have made of the sponsor’s letter.

103    The third problem is that Mr Zreika obtained a copy of the sponsor’s letter in September 2017, prior to the second Tribunal hearing. Mr Zreika was given an opportunity to make further submissions in relation to the independent expert’s report and opinion at the second Tribunal hearing. He did not, however, raise any issue concerning the non-provision of the sponsor’s letter to the independent expert, nor make any submissions in relation thereto. That was, in all the circumstances, perhaps not surprising. It rather demonstrates that, at that time, Mr Zreika appreciated that the sponsor’s letter was unlikely to assist him in any way. The speculative nature of his ex post facto suggestion that it might have assisted him in some way is thereby exposed.

104    In all the circumstances, the primary judge’s finding that the relevant breach arising from the invalid s 376 certificate and notification was immaterial was the correct one. Mr Zreika failed to demonstrate why the breach was material in the sense that compliance could realistically have led to a different decision. The primary judge’s reasoning focused on the fact that the undisclosed information in the sponsor’s letter was not shown to be material to the Tribunal’s decision. Mr Zreika failed to demonstrate that his Honour’s finding to that effect was wrong. More significantly, Mr Zreika failed to demonstrate that, but for the invalid certificate and notification, the Tribunal would have been required to, and would have, disclosed that information to him, either pursuant to s 359A or s 359AA of the Act or otherwise, and failed to demonstrate that, if that had occurred, he would have been able to make submissions concerning that information which could realistically have resulted in a different decision.

105    It follows that Mr Zreika’s first ground of appeal must be rejected.

GROUND TWO – DID THE EXPERT FAIL TO CONSIDER A CLAIM?

106    It may be accepted that a Tribunal’s decision will be vitiated by jurisdictional error if it takes an independent expert’s opinion about whether an alleged victim suffered relevant family violence to be correct if that opinion was not one which was formed in accordance with law: Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; [2012] FCAFC 13 at [64]-[65]. It may also be accepted that the opinion of an independent expert that excludes from consideration a claim or claims of family violence on the basis of a misunderstanding of the law or the relevant statutory question is not an opinion formed in accordance with law: Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 at [9].

107    The main question in this case was and is whether, as Mr Zreika claimed, the independent expert failed to consider a particular claim made by Mr Zreika because she misunderstood the statutory question. A subsidiary question was and is whether, if such an error was made by the expert, it was nevertheless an immaterial error.

108    As was noted earlier in these reasons, the documentation that Mr Zreika submitted to the Department in support of his claim that he was the victim of family violence included a statutory declaration of a social worker that included a four-page hearsay recitation of Mr Zreika’s account of various incidents of family violence. One of those incidents was an incident during which the sponsor was said to have become “very abusive” towards Mr Zreika and to have “involved her family against him”. It was then said that the sponsor’s brother came out of the sponsor’s parents’ house and pushed and yelled at Mr Zreika. This was said to have caused Mr Zreika to fear for his safety.

109    The independent expert’s initial report did not specifically refer to the alleged incident involving Mr Zreika and the sponsor’s brother. In written submissions submitted in response to the expert’s report, it was submitted on Mr Zreika’s behalf that the expert had only considered claims made by Mr Zreika during his interview by the expert and had, as a result, ignored the claim concerning the conduct of the sponsor’s brother which had been detailed in the social worker’s statutory declaration. The independent expert provided a supplement to her report which specifically addressed that claim.

110    The expert’s response to the claim concerning the sponsor’s brother was set out in full earlier in these reasons. In short, the expert noted that during the interview Mr Zreika did describe an incident that occurred between him and his brother-in-law, but that he had maintained that that incident occurred after the breakdown of the relationship. The expert noted, in that context, that the incident “would not be considered relevant family violence”, apparently because it occurred after the breakdown of the relationship. The expert then noted that Mr Zreika “did not indicate that the sponsor instructed her brother to commence an argument with Mr Zreika”. The expert repeated her conclusion that her opinion was that, having regard to all of the information available to her, Mr Zreika had not suffered relevant family violence.

111    Mr Zreika’s argument concerning the expert report, both before the primary judge and in support of his appeal, relied almost entirely on the expert’s statement that the incident concerning the sponsor’s brother “would not be considered relevant family violence”. The primary judge concluded, somewhat elliptically, that that statement, read in context, did not support the contention that the expert had failed to consider all the “circumstances”: Judgment at [32]. Mr Zreika contended that the primary judge’s conclusion was wrong because the expert had clearly stated that the incident involving the brother-in-law would not be considered to be relevant family violence because it occurred after the breakdown of the relationship.

112    There does appear to be some similarities between the expert’s opinion in this case and the expert’s opinion in Perez, which was found to be based on a misunderstanding of the relevant statutory question. There are, however, also some important differences. In Perez, the expert’s view that incidents that did not occur during the relationship fell outside the scope of “family violence” under the Regulations caused her to exclude altogether any consideration of certain specific incidents, even though there was some uncertainty about the date that the relevant relationship had ended. In this case, however, the expert did not exclude altogether from her consideration the incident involving the sponsor’s brother. Rather, she considered it and found, amongst other things, that Mr Zreika did not indicate that the sponsor had instructed her brother to commence an argument with Mr Zreika. It should be emphasised, in this context, that the relevant criterion requires that the applicant has suffered family violence “committed by the sponsoring partner”: cl 801.221(6)(c)(i) of the Regulations. The point that the expert appeared to be making, when noting that there was nothing to indicate that the sponsor had instructed her brother to commence an argument, was that the incident did not involve family violence committed by the sponsor. If there was any violence, it was committed by the sponsor’s brother.

113    In Perez, the Full Court found (at [9]) that the “correct question was whether the appellant had suffered family violence the whole or part of which occurred during the relationship”, whereas the independent expert had only asked whether the appellant had suffered family violence during the relationship. The same conclusion cannot be reached in this matter. A fair reading of the expert’s report, including the supplement, in its entirety does not support a finding that the expert proceeded on an incorrect understanding of the statutory question, or approached the matter as if it was only relevant to consider whether Mr Zreika had suffered family violence during the relationship.

114    Nor does a fair reading of the report support a finding that the expert excluded the incident with the sponsor’s brother from consideration solely because it occurred after the relationship ended. The expert certainly found that the incident clearly occurred after the relationship had ended. It followed that if that was the only incident of family violence that was found to have occurred, it could not alone have supported a finding that Mr Zreika had suffered family violence by reason of reg 1.23(14) of the Regulations. Be that as it may, the expert clearly considered that incident and found that it could not, in any event, amount to family violence committed by the sponsor because the sponsor did not instruct her brother to engage in the relevant conduct. That was the main finding made by the expert in relation to the alleged incident.

115    It was the expert’s finding that there was no evidence to indicate that the sponsor instructed her brother to engage in the relevant conduct which was the critical finding made by the expert. That this was the critical finding is confirmed by an earlier passage in the report which specifically referred to the incident as described in the social worker’s statutory declaration:

The history provided to [the social worker] by Mr Zreika is consistent with that he provided to me at the current interview, as is the information relating to the types of alleged family violence perpetrated by the sponsor against Mr Zreika. It is noted that a few additional incidents of alleged family violence were outlined in [the social worker’s] report but this relates to behaviour perpetrated by Mr Zreika’s brother-in-law, not reportedly at the request of the sponsor.

(Emphasis added.)

116    It follows that the primary judge did not err in rejecting Mr Zreika’s claim that the expert’s opinion was not in accordance with law.

117    It should finally be noted that the primary judge found that, even if the expert’s report could be read in such a way as to indicate that the expert had disregarded the incident with the sponsor’s brother on the basis that it occurred after the relationship had ended, that error was nonetheless not a material error. The basis of that finding was that the expert had found, in any event, that that incident was not family violence committed by the sponsor. Mr Zreika submitted that this finding was wrong because the independent expert had not made a “broader finding” that the sponsor had never “involved her family” or her brother against the sponsor. Mr Zreika relied, in support of that argument, on the statement in the social worker’s report that Mr Zreika had said that the sponsor had involved her family against him.

118    While the social worker’s report did include an apparent assertion by Mr Zreika that the sponsor had used her family against him, a fair reading of the expert’s report reveals that the expert made a clear finding that, despite what may have been said in the social worker’s statutory declaration, Mr Zreika did not claim during the interview that the sponsor instructed her brother to perpetrate the alleged acts which were said to constitute family violence. The expert made a clear finding that, for that reason, the acts of the sponsor’s brother could not be considered to be relevant acts of family violence committed by the sponsor. In those circumstances, the primary judge did not err in finding that, even if, contrary to the findings he had made, the expert had erroneously disregarded the conduct of the sponsor’s brother because it occurred after the relationship ended, that error was immaterial because the expert had found that the conduct would not, in any event, constitute relevant family violence.

119    Mr Zreika has not demonstrated that the primary judge erred in rejecting his arguments concerning the independent expert’s report. His second ground of appeal must accordingly be rejected.

CONCLUSION AND DISPOSITION

120    Mr Zreika failed to make out either of his grounds of appeal or otherwise demonstrate any appellable error on the part of the primary judge. His appeal must accordingly be dismissed with costs.

Associate:

Dated:    16 July 2020