FEDERAL COURT OF AUSTRALIA

El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appeal be allowed.

3.    The orders made by the Federal Circuit Court of Australia on 2 April 2019 be set aside and in lieu thereof it be ordered that:

(a)    the application for judicial review, as amended, be allowed;

(b)    the decision of the Administrative Appeals Tribunal made on 26 June 2018 be set aside;

(c)    the appellant’s application for review in the Administrative Appeals Tribunal be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law;

(d)    the first respondent pay the appellant’s costs of the application as agreed at $7,467.00.

4.    The first respondent pay the appellant’s costs of the appeal as agreed at $4,000.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia which dismissed a challenge to the lawfulness of the exercise by the Administrative Appeals Tribunal of its jurisdiction to review a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse the appellant’s application for a visa.

2    As will be seen, the appeal exposes breaches or errors at each level of the decision-making hierarchy to date. Those errors include: the indiscriminate and unjustifiable issue by the Minister of non-disclosure certificates and the notification of those certificates to the Tribunal; the inability or unwillingness of the Tribunal to grasp or grapple with the effect and implications of those certificates on the exercise of its jurisdiction; the failure of the Tribunal to disclose the existence of some of the certificates to the appellant; the failure by the Tribunal to give the appellant a sufficient opportunity to give evidence or make submissions about what turned out to be an important issue in the disposition of the review application; the failure of the primary judge to understand or appreciate the nature and materiality of the breaches of relevant statutory procedures in the Migration Act 1958 (Cth) arising from the non-disclosure of the certificates and the way they otherwise impacted on the Tribunal’s exercise of jurisdiction; and the failure of the primary judge to grapple with the Tribunal’s failure to adequately identify the issues that arose on the review in the circumstances of the case and the implications of that failure for the fairness of the Tribunal’s hearing.

3    If that were not enough, it would also appear that the Tribunal misconstrued the relevant visa criterion and, as a result, declined to complete the exercise of its review jurisdiction. This was not, however, an issue that was raised or addressed before the primary judge in the Circuit Court.

4    All in all, it would not be unfair to say that this matter could not be held up as a shining example of efficient and effective administrative decision-making and the judicial review thereof.

5    By way of brief overview, many years ago, the appellant, Mr Samih Mostafa El Jejieh, applied for a visa on the basis that he was the spouse of an Australian citizen, Ms Ronia Maarabani. Mr El Jejieh and Ms Maarabani married in Lebanon in 2013. Mr El Jejieh’s visa application was refused by a delegate of the Minister, essentially on the basis that, by the time the delegate came to decide the matter, the relationship between Mr El Jejieh and Ms Maarabani had broken down.

6    Mr El Jejieh applied to the Tribunal for a review of the delegate’s decision. The Tribunal’s consideration of Mr El Jejieh’s review application was complicated, if not effectively derailed, by the Minister’s issue of two certificates, purportedly pursuant to s 375A of the Act, the effect of which was to preclude the Tribunal from disclosing certain documents or information to anyone but the member hearing Mr El Jejieh’s review application. The Tribunal told Mr El Jejieh about one of those certificates, but not the other. It treated both as valid.

7    Somewhat bizarrely, on the day the Tribunal made its decision and published its reasons refusing Mr El Jejieh’s application, the Minister revoked one of the two s 375A certificates and notified the Tribunal of a new certificate, this one purportedly pursuant to s 376 of the Act. That new certificate covered some, but not all, of the documents covered by the earlier certification. The replacement of one of the s 375A certificates with a s 376 certificate perhaps reflected a belated recognition by the Minister of the overreach and deficient form of the s 375A certificate. What was bizarre is that this occurred on the day that the Tribunal was due to publish its reasons.

8    Needless to say, Mr El Jejieh was aware of none of this. He was given no opportunity to make any submissions concerning these goings-on concerning the certificates and given no opportunity to see any of the documents covered by them, even those covered by the revoked s 375A certificate but not covered by the new s 376 certificate. To make matters worse, the Tribunal’s method of dealing with the certificates was to simply note, in its reasons, that it had not relied on or given weight to any of the documents covered by the certificates. What was particularly surprising about that approach is that it applied to documents covered by the revoked s 375A certificate but not covered by the new s 376 certificate.

9    Equally surprising was the fact that, while up to this point the matter had appeared to proceed on the basis that Mr El Jejieh had been Ms Maarabani’s spouse for at least some period of time, but that the relationship had broken down by the time the visa decision was to be made, the Tribunal found, for reasons that were almost entirely unexplained, that the two had never been in a genuine spousal relationship. The Tribunal gave no hint to Mr El Jejieh that this was likely to be an issue in the review. Even putting that issue to one side, the effect of this finding, at least according to the Tribunal, was that it did not need to determine Mr El Jejieh’s claim that he had suffered “family violence” committed by Ms Maarabani. That circumstance, if it was found to have existed, may have meant that Mr El Jejieh satisfied the relevant visa criteria even though his relationship with Ms Maarabani had come to an end.

10    Mr El Jejieh applied to the Circuit Court for judicial review of the Tribunal’s decision. His main grounds of review concerned the fact that at least one of the s 375A certificates was invalid and that he was not advised about either the other s 375A certificate or the s 376 certificate which was issued on the day that the Tribunal made its decision and published its reasons. He also claimed that the Tribunal had failed to give him a real and genuine hearing given that he had no way of knowing that the genuineness of his spousal relationship with Ms Maarabani from the outset was an issue.

11    The primary judge rejected all of Mr El Jejieh’s grounds of review. His Honour found that, while both of the s 375A certificates were invalid, and while neither the s 375A certificate which had not been revoked, nor the s 376 certificate, were disclosed to Mr El Jejieh, that circumstance did not give rise to any “practical injustice”, apparently on the basis that the Tribunal said that it gave “no weight” to the documents covered by the certificates and those documents would not have assisted him in any event. The primary judge also found that it “ought to have been plain” to Mr El Jejieh that the genuineness of his spousal relationship was in issue. His Honour accordingly dismissed Mr El Jejieh’s application.

12    Mr El Jejieh appealed to this Court from the primary judge’s dismissal of his application.

the visa applications and the minister’s decisons

13    While an overview of the trials and tribulations of Mr El Jejieh’s efforts to obtain a visa has already been given, it is unfortunately necessary to provide considerably more detail in relation to the history of Mr El Jejieh’s visa applications and the decisions made by the Minister’s delegates in relation to them. It will also be necessary to address the Minister’s toings-and-froings in relation to the s 375A and s 376 certificates and the manner in which the Tribunal dealt with those certificates. Detailed consideration will also need to be given to the nature of the documents which were covered by the certificates and that were, as a result, neither disclosed to Mr El Jejieh nor taken into account by the Tribunal.

14    There was, somewhat regrettably, a paucity of detail about many of those matters in both the Tribunal’s reasons and the judgment of the primary judge.

Mr El Jejieh applies for and obtains a provisional partner visa

15    Mr El Jejieh met Ms Maarabani on 21 July 2013. The two were married in El Minieh in Lebanon on 15 August 2013. There was no apparent dispute that this was a valid marriage in accordance with the law in Lebanon. Ms Maarabani returned to Australia on 8 September 2013, not long after her wedding. Mr El Jejieh remained in Lebanon. As will be seen, however, that was because he had to secure a visa before traveling to Australia. As will also be seen, that took some time.

16    On 23 October 2013, Mr El Jejieh, having previously unsuccessfully applied for a visa which was not appropriate to his circumstances, was invited to and subsequently lodged a combined offshore application for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa on the basis of his being in a spousal relationship with Ms Maarabani. As the name of the former visa would suggest, it was a form of provisional visa which was granted pending the determination of the latter substantive or permanent partner visa. Ms Maarabani was Mr El Jejieh’s sponsor in respect of his visa applications. As already noted, Ms Maarabani was an Australian citizen.

17    It would appear that Mr El Jejieh and Ms Maarabani were interviewed by an officer of the Department of Immigration and Border Protection in respect of Mr El Jejieh’s visa application on 21 January 2014. A record of that interview is included in the Appeal Book. Both Mr El Jejieh and Ms Maarabani were asked questions and provided answers, which were no doubt directed to determining that their spousal relationship was genuine and not contrived. As will be seen, that record was covered by one of the s 375A certificates that was in due course given by the Minister. Mr El Jejieh was accordingly never provided with a copy of it, at least until he challenged the Tribunal’s decision in the Circuit Court.

18    Nothing much appeared to have happened in relation to Mr El Jejieh’s visa application throughout most of 2014. That prompted Ms Maarabani to write to the Department on a number of occasions during 2014 to enquire what was happening and to urge the Minister to make a decision in relation to the visa application so Mr El Jejieh could join her in Australia. The content of some of that correspondence will be considered in more detail later in these reasons. It suffices, at this point, to note two things about it: first, much of the correspondence was indicative of a genuine married relationship between Mr El Jejieh and Ms Maarabani, albeit that they were on different sides of the world because Mr El Jejieh’s visa application had not been determined; second, the correspondence was virtually all covered by one of the s 375A certificates which was in due course issued by the Minister. It was accordingly not disclosed to Mr El Jejieh by the Tribunal. More significantly, as will be seen later, the Tribunal gave it “no weight” simply because it was subject to the certificate.

19    Eventually, in December 2014, an officer of the Department arranged a “follow-up” interview with Mr El Jejieh and Ms Maarabani. That interview was conducted on 9 December 2014. The Appeal Book again contains a record of that interview. Like the first interview, the follow-up interview involved Mr El Jejieh and Ms Maarabani being asked questions which were apparently designed to elicit information about the nature and circumstances of their relationship, no doubt so the Department could assess whether it was a genuine and ongoing one. It should again be noted that the record of this interview was also covered by one of the Minister’s s 375A certificates, so it was not disclosed to Mr El Jejieh until after the Tribunal’s decision.

20    Shortly after the follow-up interview, the Department sought, by letter dated 10 December 2014, further information and evidence from Mr El Jejieh and Ms Maarabani about whether they were living together in a genuine and ongoing marital relationship. It is not entirely clear from the material that was before the Court what further evidence was provided in response to that request. There are, however, notations on a computer record (referred to in the Appeal Book index as a “Migration Record Case Dump”) which would suggest that some documentation was provided to and assessed by a Departmental officer. More significantly, the “Case Dump” includes a notation by the case officer, made on 6 February 2015, that he was “satisfied that the applicant and sponsor are spouses as defined in s5F of the Act and that clause 309.221 is satisfied”.

21    There was no dispute that Mr El Jejieh was granted a Subclass 309 visa on 6 February 2015. He entered Australia as the holder of that visa on 28 February 2015.

22    It is worth emphasising at this point that the criterion for the grant of a Subclass 309 visa at the time included that the applicant was the spouse or de facto partner of an Australian citizen, both at the time of the application and the time of the decision: cll 309.211(2)(a) and 309.221 of Sch 2 to the Migration Regulations 1994 (Cth). The statutory definition of “spouse” will be outlined shortly. It is therefore clear that, at least as at 6 February 2015, the Minister was satisfied that Mr El Jejieh was Ms Maarabani’s spouse for the purposes of the Act and Regulations.

Criteria for the grant of a Subclass 100 visa

23    The Minister still had to determine Mr El Jejieh’s application for the substantive Subclass 100 visa.

24    At the time Mr El Jejieh applied for the Subclass 100 visa, one of the criteria that had to be satisfied at the time of the decision in respect of the visa application was that the applicant met one of the requirements of either subclause (2), (2A), (3), (4), or (4A) of cl 100.221(1) of Sch 2 to the Regulations. Relevantly, cl 100.221(2) included the following requirements: first, the visa applicant was the holder of a Subclass 309 (Partner (Provisional)) visa; second, the applicant was the spouse or de facto partner of the sponsoring partner; and third, at least two years had passed since the application was made. Subclause 100.221(4) relevantly included the following requirements: first, the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa; second, the applicant continued to hold that visa; third, the applicant would meet the requirements of subclause (2) or (2A) of cl 100.221 “except that the relationship between the applicant and the sponsoring partner has ceased”; and fourth, after the applicant first entered Australia as the holder of that visa, the applicant had “suffered family violence committed by the sponsoring partner”.

25    The important point to emphasise, at this point, is that if the only reason that an applicant for a Subclass 100 visa was unable to meet the requirements of cl 100.221(2) was that the relationship between the applicant and the sponsoring partner had ceased, the applicant could nonetheless satisfy the relevant criterion by showing that he or she had suffered family violence committed by the sponsoring partner. As has already been touched on, and as will be explained in more detail later, Mr El Jejieh sought to invoke this alternate means of satisfying the relevant visa criterion before the Tribunal. The Tribunal, however, effectively avoided, or sought to avoid, dealing with this aspect of Mr El Jejieh’s case.

26    As for the meaning of “spouse”, at the time of the relevant decisions in respect of Mr El Jejieh’s visa application, s 5F(1) of the Act provided that “a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship”. Subsection 5F(2) provided as follows:

(2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)    they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)    the relationship between them is genuine and continuing; and

   (d)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

27    Subsection 5F(3) provided, relevantly, that “[t]he regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. Regulation 1.15A provided that, where the Minister is considering an application for, relevantly, a Partner (Migrant) (Class BC) visa, the Minister “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”. Subregulation 1.15A(3) provided as follows:

(3)    The matters for subregulation (2) are:

(a)    the financial aspects of the relationship, including:

    (i)    any joint ownership of real estate or other major assets; and

    (ii)    any joint liabilities; and

(iii)    the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

(v)    the basis of any sharing of day-to-day household expenses; and

(b)    the nature of the household, including:

(i)    any joint responsibility for the care and support of children; and

    (ii)    the living arrangements of the persons; and

    (iii)    any sharing of the responsibility for housework; and

(c)    the social aspects of the relationship, including:

(i)    whether the persons represent themselves to other people as being married to each other; and

(ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii)    any basis on which the persons plan and undertake joint social activities; and

(d)    the nature of the persons’ commitment to each other, including:

    (i)    the duration of the relationship; and

(ii)    the length of time during which the persons have lived together; and

(iii)    the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long-term one.

28    It may be noted that the list of “matters” in reg 1.15A(3) relevant to the circumstances of the relationship was inclusive and not exhaustive.

The delegate refuses Mr El Jejieh’s application for a Subclass 100 visa

29    On 17 December 2015, the Department received information that the relationship between Mr El Jejieh and Ms Maarabani had broken down. In either that communication, or in a communication sent to the Department at about the same time, Ms Maarabani advised the Department that she wished to withdraw her nomination in support of Mr El Jejieh’s visa application. The Appeal Book contains a letter from the Department to Ms Maarabani dated 7 January 2016 which confirmed the Department’s receipt of Ms Maarabaini’s notification, but does not contain a copy of the notification or any other record of it. As discussed later, it may be inferred that the notification is not in the Appeal Book because it was covered by the Minister’s s 375A and s 376 certificate. It was certainly not provided to Mr El Jejieh. As will also be discussed later, in the Circuit Court, the Minister resisted the production of documents covered by the s 376 certificate and the s 375A certificate dated 22 June 2016 on the basis of public interest immunity. That claim was upheld by the primary judge.

30    On 7 January 2016, the Department wrote to Mr El Jejieh and advised him that it had received information that indicated that “the spousal or de facto relationship upon which [his] application was based has ceased” and that this was “likely to result in the refusal of [his] application”. The letter advised Mr El Jejieh that he was being given the opportunity to provide a response to that information and to explain his “current circumstances” and “the reason for the breakdown of [the] relationship”.

31    Mr El Jejieh replied to the Department’s letter by letter dated 20 January 2016. That letter stated that there had been a “misunderstanding” between Mr El Jejieh and his wife, Ms Maarabani, and that they were “sorting things out”. The letter enclosed a copy of the marriage certificate which evidenced the marriage.

32    It would also appear that Ms Maarabani provided further information to the Department at around this time. The Appeal Book includes a copy of an email from an officer of the Department thanking Ms Maarabani for her email and noting that the information provided by her had been “added … to the file”. The Appeal Book did not include a copy of Ms Maarabani’s email. It may again be inferred that it was a document which was covered by the Minister’s s 375A and then s 376 certificate and was also the subject of the Minister’s successful public interest immunity claim.

33    On 3 March 2016, a delegate of the Minister refused Mr El Jejieh’s application for a Subclass 100 visa. The essential reason given for the refusal of the application was that the delegate found that Mr El Jejieh did not satisfy any of the criteria in cl 100.221 of Sch 2 to the Regulations. Importantly, the delegate’s reasons clearly proceeded on the basis that, while Mr El Jejieh and Ms Maarabani had been in a relationship, that relationship had broken down by the time of the decision. It was on that basis that the delegate found that Mr El Jejieh did not meet the definition of “spouse” or de facto partner as defined in the Act. For example, the delegate reasoned as follows:

You and your sponsor claim to have known each other since 21 July 2013 and were married on 15 August 2013. I accept that you and your spouse are lawfully married as you have provided a marriage certificate. However, your sponsor has withdrawn her support for your application as the relationship had broken down, therefore I find that there is no commitment to an on-going relationship from your sponsor.

34    The delegate also noted that the fact that Mr El Jejieh held a “309 visa” did not, in and of itself, demonstrate that he “continue[d]” to meet the definition of “spouse” or de facto partner as defined in the Act and that because the relationship had broken down, Mr El Jejieh was “no longer” the spouse or de facto partner of Ms Maarabani.

35    The significant point to emphasise is that there was nothing in the delegate’s reasons to suggest that the delegate had found that Mr El Jejieh was never in a genuine spousal relationship with Ms Maarabani. Nor was there anything else in the delegate’s reasons to indicate to Mr El Jejieh that the genuineness of his relationship with Ms Maarabani before the breakdown was an issue, or likely to be an issue, in relation to his prospective review application in the Tribunal.

IN THE TRIBUNAL

36    Mr El Jejieh applied to the Tribunal (then the Migration Review Tribunal) for a review of the delegate’s decision on 9 March 2016.

37    On 20 December 2016, the Tribunal invited Mr El Jejieh to attend a hearing. That hearing was initially scheduled for 3 January 2017, though the date was subsequently changed to 7 February 2017. Mr El Jejieh responded to that hearing invitation and in due course provided the Tribunal with some further material. That material included a report from a social worker which contained detailed accounts of claims by Mr El Jejieh that he had been the victim of several incidents of family violence by his wife, Ms Maarabani, and her family. The report also included the social worker’s opinion that Mr El Jejieh had “presented as a man who was highly stressed, anxious and traumatised, consistent with a victim of domestic violence”.

38    For reasons that appear to have nothing whatsoever to do with Mr El Jejieh, the Tribunal repeatedly rescheduled the hearing date throughout 2017. Ultimately, the hearing took place on 28 November 2017.

The Minister issues non-disclosure certificates

39    On 22 June 2016, a document bearing the heading “Certificate and notification regarding the disclosure of certain information only to the Migration Review Tribunal under s 375A of the Migration Act 1958” was prepared and apparently sent to the District Registrar of the Tribunal. The certificate included the name of the person who was apparently responsible for issuing the certificate but was not signed. The person named was stated to be a delegate of both the Minister and the Secretary of the Department.

40    The body of this certificate was in the following terms:

I certify that, in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s (sent via email) of file number OSF2013010580 would be contrary to the public interest because:

(a)    Information provided as attachment to email was provided as an allegation and the source has an expectation of anonymity. The identity of the source of the allegation should not be disclosed or by extension, any information contained within the allegation that would have potential to identify the source.

As s375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.

41    The existence of this certificate was never disclosed to Mr El Jejieh by either the Minister, the Secretary or the Tribunal. He was given no opportunity to make any submissions concerning it or its implications for the Tribunal’s review. Nor was the document supposedly covered by it, or the information in that document, ever disclosed to him.

42    As will be seen, the primary judge ultimately held that this certificate was invalid. The Minister did not challenge that decision on appeal. His Honour, however, upheld the Minister’s objection to the production of the document covered by this certificate on the ground of public interest immunity. More will be said about that later. It suffices at this point to note that the precise nature of the document covered by this certificate and the information contained within it remains essentially unknown.

43    On some other date prior to the hearing in the Tribunal on 28 November 2017, another certificate was issued, or purportedly issued by a delegate of both the Department and the Secretary. This certificate was signed but undated. The certificate bore a similar heading as the earlier certificate. The body of the certificate was in the following terms:

I certify that, in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Administrative Appeals Tribunal of any matter or information contained in folio/s 1, 8-10, 27, 27A, 28, 39, 58, 74-82, 94-95, 100, 103-107, 108, 112-113, 132, 134, 137-160, 164-167, 169, 185-186, 198-199 of file number OSF2013010580 would be contrary to the public interest because:

(a)    folio 74-82, 100, 108, 112-113, 137-160 contains information regarding immigration processes

(b)    folio 1, 8-10, 27, 27A, 28, 39, 58, 94-95, 103-107, 132, 134, 164-167, 169, 185-186, 198-199 contains personal information of Sponsor

As s375A applies to the documents/information identified above, the AAT must do all that is necessary to ensure that the document or information is not disclosed to any person other than to a member of the AAT, pursuant to s375A(2)(b) of the Migration Act 1958.

44    More will be said later about this certificate and its effect on, and implications for, the Tribunal’s review. It suffices for present purposes to note the following points.

45    First, the Tribunal disclosed the existence of this certificate to Mr El Jejieh during the hearing on 28 November 2017. As will be seen, however, that disclosure was far from satisfactory.

46    Second, somewhat extraordinarily, on 26 June 2018, the very day that the Tribunal made its decision and published its reasons, a delegate of the Minister revoked this certificate. It is difficult to accept that the timing was purely coincidental. The Tribunal briefly referred to the revocation of this certificate in its reasons, but said nothing about the effect or implications of the revocation. It appears that the Tribunal erroneously considered that there were no real implications because the revoked certificate was effectively “reissued” on the same day, albeit pursuant to s 376 of the Act. Perhaps more significantly, there is no indication whatsoever in the Tribunal’s reasons that Mr El Jejieh was notified of the revocation of the certificate, or given any opportunity to make submissions about the implications of the revocation to the conduct of the review, or any opportunity to obtain access to the documents that were covered by the certificate, or the information contained in those documents.

47    Third, the primary judge, in any event, held that this certificate was invalid. The Minister did not challenge that decision on appeal.

48    Fourth, it is readily apparent that there was never any proper basis for the Minister’s delegate to certify that the disclosure of most of the documents covered by the certificate would be contrary to the public interest. The Minister did not endeavour to justify the issue of the certificate or attempt to claim public interest immunity in relation to most of the documents covered by it.

49    Fifth, as will be seen, the Tribunal endeavoured to deal with the implications of this certificate for the review by stating, in its reasons, that it had not “relied on or put weight on” any of the information in the documents covered by the certificate. That approach appears to have been taken irrespective of what that information was. It follows that the effect of the certificate was that the Tribunal effectively ignored the information in the documents covered by the certificate even if, for example, that information was materially favourable to Mr El Jejieh’s case.

50    Sixth, as will also be seen, many of the documents covered by the certificate were favourable, or capable of being seen to be favourable, to Mr El Jejieh’s case in at least one material respect. Yet they were ignored by the Tribunal because of the existence of a certificate that was ultimately revoked and was, in any event, invalid.

The Tribunal hearing

51    As has already been noted, Mr El Jejieh attended a hearing before the Tribunal on 28 November 2017. He was not represented or assisted by a migration agent or lawyer at the hearing. The transcript of the hearing was in evidence before the primary judge.

52    It is important to emphasise three features or aspects of the hearing revealed by the transcript.

53    First, at the very commencement of the hearing, the Tribunal told Mr El Jejieh about the existence of the signed but undated s 375A certificate. It is important to set out in full exactly what the Tribunal said about that certificate.

Member:    Ok. This is a just file and information all the files are with me. Now I just want to go through a preliminary matter with you. The Department of Immigration has provided information to the Tribunal in its file and has issued a Certificate pursuant to Section 375A of the Act which requires the Tribunal to do all things necessary to ensure that the documents or information are not disclosed to any person or any other person. Now there are a number of documents, the reason stated in the certificate for non disclosure is

a)    It contains information regarding immigration processes, and

b)    It contains personal information regarding the sponsor

So you can make any submissions you want about the validity of the certificate now or you can write to me later or you can just forget about it.

Applicant/Int    What certificate?

Member    It’s called a, it’s just a piece of paper, this is it, it’s from the Department and it saying that there is information in the Department’s file, information which the Department does not want to have released because of two reasons, one is information regarding immigration processes, they don’t want everyone to know what is happening or how they run their business and the second reason is there are other pieces of paper they don’t want released is because it contains personal information regarding your sponsor.

Applicant/Int    I don’t know this information for my sponsor.

Member    You can ask your advisor to send in a request or something but at the moment I just want to know if you want to make any submissions about the validity of the certificate. That is if you think

Applicant/Int    I don’t know what is in that certificate, what did she to the immigration.

Member    I’ll just give you some time after the hearing if you want to contact your adviser and he might want to send a letter into me or something like that.

Applicant/Int    I have no adviser or representative.

54    A few things may be noted about this exchange. It is clear that the Tribunal did not give a copy of the certificate to Mr El Jejieh. It is equally clear that the Tribunal’s description of the certificate and its explanation of its effect was, to say the very least, wanting. Indeed, what the Tribunal did say about the certificate tended to trivialise it and its effect. It was hardly helpful to say that Mr El Jejieh could make submissions about the validity of the certificate or “just forget about it”. It is also difficult to see how Mr El Jejieh could realistically make any submissions about the certificate given that the Tribunal did not show him the certificate, or give him a copy of it, or properly explain what s 375A of the Act provided, or what the preconditions for the issue of a certificate under that section were. The Tribunal does not explain, for example, that the Minister can only issue a certificate under s 375A if there is a proper basis for the Minister to certify that disclosure would be contrary to the public interest.

55    It seems fairly clear that Mr El Jejieh did not fully understand what the Tribunal was saying in relation to the certificate. It was hardly helpful, in those circumstances, for the Tribunal to say, when queried about the certificate: [i]t’s called a, it’s just a piece of paper”. Nor was the Tribunal’s explanation that there were “other pieces of paper they don’t want released … because it contains personal information regarding your sponsor” likely to assist Mr El Jejieh in deciding what he could or should do in relation to the certificate. Mr El Jejieh did, however, make it tolerably clear that he did not know what that “personal information” was.

56    The second point to note about the hearing is that the Tribunal does not, at any point, explain the nature of the issues arising in relation to the review to Mr El Jejieh. Nothing in the Act required or obliged the Tribunal to do so, though as will be seen later, the fact that it did not say anything about the issues is of considerable relevance, in the particular circumstances of this case, in determining whether Mr El Jejieh was afforded a genuine opportunity to give evidence and present arguments concerning his review application.

57    The only real explanation that the Tribunal gave to Mr El Jejieh was to state, before he began questioning him, that:

… What I want to do today is just ask you some questions. Now I’ll ask some preliminary questions just like when did you first become aware of your wife-to-be, when did you first speak to her or see her?

58    The Tribunal then proceeded to ask Mr El Jejieh about his relationship with Ms Maarabani.

59    Critically, at no point during the entire interview does the Tribunal question Mr El Jejieh in such a way as to put him on notice that there was any live issue or question about the genuineness of his marriage or marital relationship with Ms Maarabani prior to the breakdown of that relationship after Mr El Jejieh arrived in Australia. As will be seen, the high point in that regard, at least insofar as the Minister and the primary judge were concerned, was the following exchange:

Member    Okay, did you ever get any companionship or emotional support from your wife?

 Applicant    No. Maybe in Lebanon yeah. Here no.

 Member    So how long were you together in Lebanon again?

 Applicant    From 2013 to 2015. 2013, 2014, 2015 separate 2015 in December.

 Member    In Lebanon.

Applicant    Two and a half months and she come to here. And I’m waiting two and a half years and after like bring the visa I'm coming to here.

Member    So you were together two and a half months in Lebanon, waiting two and a half years.

Applicant    I’m with him like on the phone, electronic letter you know message and like whatsapp one hour calling you know.

 Member    Yeah that's important.

Applicant    Yeah like after we bring the visa and like 2015 I’m coming to here and live with him as her wife, with my wife sorry.

 Member    So altogether that’s how long did you live together?

 Applicant    You mean we live together?

Member    I think I can work it out. Just one last thing so you’re together in Lebanon two and a half months then waiting two and a half years to come to Australia.

 Applicant    Yeah the relation is continuous you know.

Member    Yeah. You think you were going to be with her forever so you’re not separate and apart permanently.

 Applicant    Yeah.

 Member    Okay so then you come to Australia

 Applicant    In February2015

60    It should perhaps be noted, to put this exchange in context, that Mr El Jejieh was unable to come to Australia to join Ms Maarabani until he was granted a Subclass 309 visa. As was noted earlier, the Department took well over a year to consider and determine that application. It should also be noted that, as adverted to earlier, during the time that Mr El Jejieh was in Lebanon, Ms Maarabani was pressing the Department to determine his Subclass 309 visa so he could join her in Australia. There is, however, nothing to suggest that Mr El Jejieh knew that to be the case. It was only revealed by some of the documents that were not disclosed to Mr El Jejieh because of the invalid and revoked s 375A certificate.

61    The Minister and the primary judge also highlighted the following passage:

Member    Okay so what was the length of time you and your wife actually lived together?

 Applicant    Five months. Five to six month in Lebanon and here.

Member    Okay. And what was the degree of companionship and emotional support that you drew from each other?

Applicant    Lebanon was good but here no. After one month like everything is gone.

62    As can be seen, this passage adds little, if anything, to the other passage highlighted by the Minister and the primary judge. It should also be added that those passages must plainly be read and considered in the context of what was said during the entire hearing. It is tolerably clear that Mr El Jejieh’s evidence was that his marital relationship with Ms Maarabani was good in Lebanon and okay for a short period in Australia, but then broke down. The Tribunal never really challenged or queried that evidence in any way.

63    The third point to note about the hearing is that the Tribunal asked Mr El Jejieh about the “violence that may have taken place” between him and his wife. It is unnecessary to set out Mr El Jejieh’s evidence on that topic. The point is that there could be no doubt that Mr El Jejieh maintained that there had been “relevant family violence” for the purposes of cl 100.221(4) of Sch 2 to the Regulations and the Tribunal was aware that that was the case.

The Tribunal’s decision and reasons

64    The Tribunal decided to affirm the delegate’s decision not to grant Mr El Jejieh a Subclass 100 visa and published its Statement of Decision and Reasons on 26 June 2018.

65    Before endeavouring to explain the Tribunal’s reasons for affirming the decision under review, reference should be made to the Tribunal’s explanation of how it dealt with or responded to the certificates issued by the Minister under s 375A and s 376 of the Act.

How the Tribunal dealt with issues arising as a result of the certificates

66    The Tribunal stated that it had “discussed the s.375A Certificate at folio 201 of the Departmental file … with [Mr El Jejieh] who was not represented”: Reasons at [7]. The Tribunal’s recitation of that “discussion” makes it plain, if it was not already plain from the transcript, that the certificate that the Tribunal “discussed” with Mr El Jejieh was the signed but undated s 375A certificate.

67    The Tribunal then stated that it “has not relied on or put weight on any information outlined in (a) or (b) above”: Reasons at [12]. The Tribunal’s reference to “(a) or (b) above” is a reference to the Tribunal’s summary (at Reasons [8]) of the “reason stated in the certificate for non-disclosure” which was “(a) it contains information regarding immigration processes; and (b) it contains personal information of the sponsor”.

68    It is entirely unclear exactly what the Tribunal meant when it said that it had “not relied on or put weight on any information” that met that description. Was it saying that it had not relied on or given weight to any information “regarding immigration processes” or any information containing “personal information of the sponsor”? Or was it saying that it did not rely on or put weight on any of the documents identified (by folio number) in the certificate? It is not even apparent whether the Tribunal even looked at those documents.

69    The Tribunal then stated as follows in relation to the withdrawal of the undated s 375A certificate and the issue of the s 376 certificate (Reasons at [13]-[14]):

On 26 June 2018 the Tribunal received a notice from the Department revoking the aforementioned s.375A certificate at folio 201. The Department reissued the certificate for reason of the document(s) /information in folios185, 163(a)-167 of file number OSF2013/010580 because it was given to the Minister, or an officer of the Department, in confidence, and section 375A does not apply.

However, stated above the Tribunal has put no weight on information provided in the certificate.

70    A number of points can be made about what that statement reveals about the Tribunal’s approach to the certificates and their impact on the review.

71    First, it is clear that, despite obviously receiving notification of the revocation of the s 375A notice before having finalised its decision and reasons, the Tribunal made no attempt to notify Mr El Jejieh that the certificate that it had told him about at the hearing had since been revoked. Nor did the Tribunal apparently consider whether it should, in those circumstances, disclose to Mr El Jejieh any relevant information contained in the documents that had been covered by that notice. Perhaps more significantly, there is nothing to suggest that the Tribunal gave any consideration to whether, given the revocation of the notice, there was a proper basis for it to not rely on, or give no weight to, any of the information in the documents that had been covered by the notice but were not covered by the s 376 notice. What was the basis for continuing to give no weight to that information if it, or some of it, was relevant and material to the review?

72    Second, it is equally clear that the Tribunal did not disclose the existence of the s 376 certificate to Mr El Jejieh.

73    Third, the Tribunal appears to have proceeded on the erroneous basis that, by issuing the s 376 certificate, the Minister simply “reissued” the revoked s 375A certificate, albeit only in respect of different documents and on a different basis. Plainly the Tribunal did not know or appreciate the differences between s 375A and s 376 of the Act. The main difference is that under s 376 of the Act, the Tribunal not only has a discretion to have regard to “any matter contained in the document [referred to in the certificate], or to the information”, but also has a discretion to “disclose any matter contained in the document, or the information, to the applicant”: s 376(3). The Tribunal does not have any such discretion in the case of a s 375A certificate.

74    Fourth, and related to the third point, it is clear that the Tribunal did not consider whether to exercise its discretion to have regard to the documents covered by the s 376 certificate, or the information contained in them, or whether to exercise its discretion to disclose the documents or any information in them to Mr El Jejieh. Rather, it appears to have simply maintained the position that it had plainly already adopted that it would not rely on or give any weight to any information in those documents. The inference that the Tribunal approached the s 376 certificate in that way is based, at least to a certain extent, on an assumption that, when it said (Reasons at [14]) that it “put no weight on information provided in the certificate”, the Tribunal meant to say that it put no weight on the information in the documents covered by that certificate. If that is not what the Tribunal meant, the statement in that paragraph of its reasons is essentially nonsensical.

75    Either way, the Tribunal plainly erred in the exercise of its jurisdiction by failing to consider whether to exercise its jurisdiction in relation to the documents or information covered by the s 376 certificate. It either did not know that it had any such discretion, which appears most likely, or if it did, it failed to turn its mind to its exercise.

76    Finally, the Tribunal referred to a “further s.375A matter” in the following terms (Reasons at [15]-[16]):

The Tribunal refers to an extra piece of information in another certificate regarding the disclosure of certain information only to the (then) Migration Review Tribunal under s.375A of the Act.

The Tribunal has not put weight on it as it is from an anonymous source.

77    This part of the Tribunal’s reasons appears to relate to the unsigned certificate which was dated 22 June 2016. The approach the Tribunal took to this certificate is as baffling and confused as its treatment of the other certificates. The following points may be made.

78    First, as has already been noted, the Tribunal plainly did not disclose the existence of this certificate to Mr El Jejieh. It made no attempt to explain why it did not do so, particularly given that it had disclosed the other s 375A certificate, albeit in entirely unsatisfactory terms.

79    Second, the approach taken by the Tribunal to this certificate was to again simply state that it had not “put” weight on the information apparently contained in the document covered by this certificate. There is, however, no indication whatsoever that the Tribunal even knew what the information was. Indeed, the available inference is that it did not. That is because the reason given by the Tribunal for not giving any weight to the information was that it was “from an anonymous source”. That was wrong. Had the Tribunal carefully read the certificate, or read the document covered by it, it would have been readily apparent to it that the “allegation” in the document was supposedly made by a source who had “an expectation of anonymity”. The certificate went on to say that the identity of the source, or any information which might disclose the identity of the source, was not to be disclosed as it was contrary to the public interest. Plainly the identity of the source was known to the Minister or the Department. It was just not to be disclosed.

Reasons for affirming the decision under review

80    Returning, then, to the Tribunal’s reasons for affirming the decision under review, it would appear that the Tribunal largely approached the review on the basis that the main, if not sole, issue was “whether there is a relationship in this matter” (Reasons at [18]) or, more specifically, whether “at the time of this decision, the applicant [Mr El Jejieh] is the spouse or de facto partner of the ‘sponsoring partner’ [Ms Maarabani]” and therefore satisfied cl 100.221(2) and (2A) of Sch 2 to the Regulations: Reasons at [19]. The Tribunal dealt with that issue by reference to the definition of “spouse” in s 5F of the Act and what it saw as the “requirements” in reg 1.15A of the Regulations.

81    It is unnecessary to give any detailed consideration to the Tribunal’s findings and reasoning in relation to that issue. Suffice it to say that the Tribunal was “not satisfied that at the time of [the] decision the parties are in a married relationship”: Reasons at [88]. That was, it must be said, hardly surprising given that Ms Maarabani had told the Department that her relationship with Mr El Jejieh had ceased and Mr El Jejieh had all but confirmed that to be the case in his evidence before the Tribunal. There was no real issue about it.

82    What is surprising, however, is that the Tribunal then went on to conclude that “the applicant and the sponsor have never been in a genuine spousal relationship”: Reasons at [89] (emphasis added). What is surprising about that finding is that it was almost entirely unsupported by any logical or probative reasoning. The Tribunal did not refer to any evidence, or refer to any specific factual finding, which provided material support for that conclusion. Virtually all of the evidence, and all of the factual findings, which was referred to earlier in the Tribunal’s reasons related to the nature of the relationship at the time of the decision, after the relationship had ceased. While at various points in its reasons the Tribunal referred to Mr El Jejieh’s evidence about certain aspects of the relationship at certain indeterminate points in time, none of that evidence suggested that there was never a genuine relationship. Similarly, while the Tribunal at various points stated that it gave little weight to certain factors or considerations because they were not “indicative of a genuine relationship”, almost without exception those statements were not linked to the evidence and were largely unexplained. They amounted to no more than mere ipse dixit.

83    The reason why the Tribunal went on to make a finding, almost entirely unsupported by any reasoning, about the genuineness of the marital relationship between Mr El Jejieh and Ms Maarabani from the outset is perhaps apparent from the following paragraph of the Tribunal’s reasons (Reasons at [91]):

The applicant claimed family violence. However, as the Tribunal was not satisfied that the applicant and the sponsor have ever had a genuine spousal relationship, the Tribunal has not considered the issue of family violence.

84    In other words, according to the Tribunal, its finding that there was never any genuine spousal relationship absolved it of the need to resolve the more thorny issue concerning family violence. It may be noted that nowhere in its reasons did the Tribunal refer to the requirements of cl 100.221(4) of Sch 2 to the Regulations, or even attempt to explain how it was that, if there was never any genuine spousal relationship, it did not have to consider whether Mr El Jejieh met the relevant visa criteria by establishing, in accordance with cl 100.221(4), that he had suffered family violence committed by Ms Maarabani. As will be seen, the construction of cl 100.221(4) is not as simple as the Tribunal apparently thought it to be.

IN THE CIRCUIT COURT

85    Mr El Jejieh filed an application in the Circuit Court pursuant to s 476 of the Act seeking an order that the decision of the Tribunal be quashed and the issue of a writ of mandamus directed to the Tribunal requiring it to determine his application according to law. His application was supported by four grounds.

Grounds of review in the Circuit Court

86    The first three review grounds all related to the various certificates that had been issued by the Minister.

87    The first review ground related to the undated s 375A certificate which was revoked on the day that the Tribunal made its decision and published its reasons. Mr El Jejieh argued that the issue and withdrawal of the certificate “affected” the review because “documents covered by the certificate … contained information which was material to the outcome of the review in that it supported [his] case that he had been in a genuine relationship with the sponsor prior to their separation”. Mr El Jejieh referred, in particular, to an email from Ms Maarabani to the Department dated 8 March 2016 which was said to be covered by the certificate. In that email, Ms Maarabani referred to Mr El Jejieh as her “ex-fiance” and stated, amongst other things, that Mr El Jejieh was still wanting Ms Maarabani to “come back” to him.

88    The second review ground concerned the s 376 certificate. Mr El Jejieh contended that the Tribunal erred jurisdictionally because it did not advise him of the existence of this certificate or did not give him an opportunity to seek the exercise by the Tribunal of its power under s 376(3)(b) of the Act to disclose to him the contents of the documents covered by the certificate.

89    The third review ground concerned the s 375A certificate which was dated 22 June 2016. Mr El Jejieh contended that he was denied procedural fairness because he was not told of the existence of that certificate.

90    The fourth ground of review was that the Tribunal failed to comply with s 360 of the Act. Section 360 of the Act provided 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. Mr El Jejieh argued that he was not given the opportunity to give evidence and present arguments on the issue of whether he was in a genuine relationship with Ms Maarabani before that relationship broke down. He pointed out, in that context, that the delegate had not doubted that there was a genuine spousal relationship prior to separation.

91    The primary judge rejected each of Mr El Jejieh’s review grounds: El Jejieh v Minister for Home Affairs & Anor (No 2) [2019] FCCA 840 (Judgment). Before setting out his Honour’s reasons for so doing, it is necessary to briefly address the issue that arose at the hearing in the Circuit Court concerning public interest immunity.

The Minister’s public interest immunity claim is upheld

92    Mr El Jejieh sought the production of all of the documents which were or had been the subject of the s 375A and s 376 certificates issued by the Minister. The Minister resisted production of certain of those documents on the ground that they were subject of a valid claim of public interest immunity. The documents that were the subject of that claim were the documents covered by the s 376 certificate and the document covered by the s 375A certificate dated 22 June 2016.

93    The Minister relied, in support of his public interest immunity claim, on an affidavit sworn by an officer of the Department who held the position of acting Director in the Family Migration Program Management Section. That officer deposed that: the documents over which public interest immunity was claimed disclosed the existence of a “confidential source of information relating to the enforcement or administration of the Act who provided the information to the Department on an anonymous basis”; disclosure would “found an action against the Department for breach of confidence”; disclosure would “[p]otentially compromise the physical safety and wellbeing of the third party (or third parties) referred to in the documents”; and disclosure would “hinder or inhibit or diminish the ability of the Department to properly administer the Act insofar as the Department relies on the receipt of community information from third parties”.

94    Mr El Jejieh opposed the Minister’s public interest immunity claim on the basis that the irresistible inference was that the identity of the “confidential source” had already been disclosed and was already known. He contended that it was obvious that Ms Maarabani was the supposedly confidential source.

95    The primary judge upheld the Minister’s public interest immunity claim: El Jejieh v Minister for Home Affairs & Anor [2019] FCCA 838 (PII Judgment). His Honour did not inspect the documents over which the claim had been made. His Honour said that, while there were “references to sources of information in the Court book”, he did “not regard the ability to speculate about an inference that might be drawn as to who the informant is, outweighs destroying the important public interest immunity in protecting the identity of informants”: PII Judgment at [5].

96    Mr El Jejieh did not seek leave to appeal against the interlocutory judgment in relation to public interest immunity or argue, in support of his appeal, that it was wrongly decided. It is accordingly unnecessary to determine the correctness of the primary judge’s ruling. It may nonetheless be observed that there are good reasons to doubt the correctness of the ruling. While the position is somewhat uncertain in relation to the document covered by the s 375A certificate dated 22 June 2016, it was and is abundantly clear that the documents that were covered by the s 376 certificate, in respect of which the Minister maintained a claim of public interest immunity, were documents relating to Ms Maarabani and that she was the supposed “confidential source” of the information in those documents. That was not, as the primary judge stated, a mere matter of speculation. It was an available, if not inescapable, inference available from the material that was before the court.

97    The documents covered by the s 376 certificate were a small subset of the documents which were initially covered by the undated s 375A certificate which was revoked on the day that the Tribunal made its decision. Those documents were relevantly described in the s 375A certificate as containing “personal information of Sponsor”. The sponsor was, of course, Ms Maarabani. Many of the documents covered by the undated s 375A certificate which fell within that description, but were not the subject of the s 376 certificate, were also not the subject of the Minister’s public interest immunity claim. They were included in the material that was tendered before the primary judge and were in due course included in the Appeal Book. When consideration is given to the sequence of the folio numbers of those documents, and the folio numbers of the documents covered by the s 376 certificate, there was and is, as Mr El Jejieh had submitted, an irresistible inference that the documents covered by the s 376 certificate were authored by, or emanated from, Ms Maarabani. That was not a mere matter of speculation as suggested by the primary judge. This issue is addressed in more detail later in these reasons.

98    It follows that there was merit in Mr El Jejieh’s submission that the identity of the “confidential source”, at least in the case of the documents the subject of the public interest immunity claim that were covered by the s 376 certificate, was already in the public domain. That was not a matter of mere speculation. It was a matter of obvious and irresistible inference. It had already effectively been disclosed by the Minister himself in issuing the undated s 375A certificate referring to the documents as containing “personal information of Sponsor”. It is, therefore, difficult to see how the primary judge could have concluded that there was any relevant public interest to be served by not disclosing those documents.

The primary judge’s reasons

99    The primary judge found that both of the certificates that were purportedly issued pursuant to s 375A of the Act were invalid. The undated certificate was “clearly invalid for want of reasons supporting the disclosure being contrary to public interest” and “for want of a date”: Judgment at [24]. The s 375A certificate dated 22 June 2016 was, according to his Honour, invalid “for want of a signature”: Judgment at [23]. The Minister did not challenge either of those findings. As for the s 376 certificate, the primary judge accepted that it was “on its face” valid: Judgment at [27]. It is not entirely clear whether Mr El Jejieh contended otherwise. In any event, he did not challenge, in his submissions in support of the appeal, the primary judge’s finding that the s 376 certificate was valid.

100    The primary judge dealt with Mr El Jejieh’s first three grounds of review together. His Honour found that, despite the “limited disclosure” of only one of the s 375A certificates and the non-disclosure of the s 376 certificate, “no such practical injustice occurred in the circumstances of the present case”: Judgment at [33]-[34]. Nor did the invalidity of the two s 375A certificates “give rise to any practical injustice”. That was because “the documents the subject of this evidence cannot be said to be material in the circumstances of the present case”: Judgment at [34].

101    While that conclusion is expressed in terms that are in some respects rather unclear, what his Honour appears to have found is that Mr El Jejieh had not demonstrated that any of the documents covered by any of the certificates were in any way “material” to the Tribunal’s review. While his Honour did not say so in terms, it would appear that when he said “material”, in this context, his Honour meant that the documents could not realistically have affected the outcome of the review.

102    So far as it is possible to glean the basis of that conclusion from the primary judge’s reasons, it appears to have been that, while some of the documents covered by the revoked s 375A certificate were favourable to Mr El Jejieh’s case because they showed, contrary to the conclusion ultimately reached by the Tribunal, that Mr El Jejieh and Ms Maarabani were in a genuine marital relationship before it broke down, there was in any event other evidence before the Tribunal which was to the same effect. That is, his Honour appeared to reason that, even though the effect of the revoked s 375A certificate was that the Tribunal ignored or gave no weight to documents that supported Mr El Jejieh’s case, there was nevertheless no “practical injustice” because there were other documents before the Tribunal which were also supportive of Mr El Jejieh’s case, and yet the Tribunal nevertheless found against him. His Honour also appeared to rely on the fact that the Tribunal questioned Mr El Jejieh about his relationship with Ms Maarabani and that the relationship later broke down, though it is unclear exactly why those considerations bore on the materiality of the documents that were not taken into account by the Tribunal.

103    His Honour relevantly reasoned as follows (Judgment at [30]-[32]):

A schedule was handed to the Court and marked MFI1 in relation to the documents in respect of which Mr Godwin contended that the applicant had suffered a practical injustice by reason of the absence of access to the documents the subject of the invalid certificate. The documents referred to, emanate from information provided by either the applicant or the sponsor. It is apparent from the material in the Court Book and in particular, a letter dated 3 November 2013, from the sponsor who asserted that they had a genuine committed relationship with the visa applicant whilst in Lebanon, including the confirmation of their marriage and their emotional connection with each other. Further, the letter asserted that the applicant and sponsor were in a devoted relationship and referred to the benefit of that alleged relationship and the understanding of each other.

In circumstances where the Tribunal had that information before it and the information provided in the hearing by the applicant concerning the relationship both in Lebanon and in Australia, the Court does not accept that the applicant has suffered any practical injustice in the present case by reason of the failure to disclose to the applicant the documents the subject of the certificate for which no claim for public interest immunity is maintained. It is apparent that the applicant referred to the attempts by the applicant to maintain the relationship and contrary to the applicant’s desire, the sponsor wanted to end the relationship.

The Court accepts there may be circumstances in which there is material information that is not adverse that can give rise to a practical injustice. None of the documents the subject of the certificates in the present case are the subject of any submission as to being adverse information. Rather, Mr Godwin’s submission is that the applicant lost the benefit of beneficial information in support of the relationship. Given the content of the transcript and the issues raised with the applicant, including-whether the applicant ever got companionship and emotional support from his wife and the answer “No. Maybe in Lebanon. Yeah. Here, no”, taken together with the limited period of two and a half months living together in Lebanon, as well as the communications between the applicant and the sponsor in which the applicant was being threatened by the sponsor with information being given to the Department to take away the applicant’s visa, the applicant wanting a more stable life, and that the total length of time they lived together, both in Lebanon and Australia, was five to six months, the Court is not satisfied that the non-disclosure of the invalid certificate at page 211 of the Court Book, and the documents the subject of the certificate at page 211 of the Court Book did not give rise to any practical injustice in the conduct of the review by the applicant.

104    The last sentence of this passage is not easy to understand. It may perhaps be accepted that there is one too many “nots” in the conclusion at the end of the sentence than his Honour intended.

105    It should be emphasised, in this context, that the nature and content of some of the documents covered by the undated and revoked s 375A certificate was known by the time of the hearing in the Circuit Court. They were included in the material that was before the primary judge. As has already been adverted to, and will be discussed in more detail later, they were plainly favourable to Mr El Jejieh’s case. The same cannot necessarily be said concerning the document covered by the s 375A certificate dated 22 June 2016 or the documents covered by the s 376 certificate. That is because those documents were covered by the Minister’s public interest immunity claim which was upheld by the primary judge. They were accordingly not in evidence in the Circuit Court or otherwise before this Court. It was and is accordingly not known whether they were favourable or unfavourable to Mr El Jejieh’s case.

106    The primary judge appears not to have specifically or separately addressed the materiality of the documents covered by the s 375A certificate dated 22 June 2016. While the primary judge did appear to separately address the materiality of the documents covered by the s 376 certificate, his Honour’s reasons are, with respect, somewhat baffling. His Honour said (Judgment at [33]):

The Court has taken into account the limited disclosure of only one certificate and the Court has also taken into account the failure to disclose the certificate under s 376, and the documents the subject of that certificate. The Court has found the s 376 certificate was valid, and that the documents the subject of that certificate had been the subject of a successful claim for public interest immunity in circumstances where the Tribunal expressly identified it had placed no weight on the documents the subject of the certificates, and where the documents had otherwise been put into evidence, the Court has considered whether the information not disclosed to the applicant gave rise to an impractical injustice.

107    It is not clear what the primary judge meant when he said “and where the documents had otherwise been put into evidence” in the last sentence of this paragraph. There may be a missing “not” in this sentence. None of the documents covered by the s 376 certificate were in fact “put into evidence”.

108    The primary judge also appears not to have separately addressed Mr El Jejieh’s contention that he was denied procedural fairness because he was not able to make submissions concerning the validity of the s 375A certificate dated 22 June 2016, or the s 376 certificate, because neither of those certificates were disclosed to him. Nor did his Honour address Mr El Jejieh’s contention that he was denied the opportunity to submit, in relation to the s 376 certificate, that the Tribunal should exercise its discretion under s 376(3)(b) of the Act to disclose to him the documents covered by that certificate.

109    In relation to Mr El Jejieh’s fourth review ground, the primary judge rejected the contention that Mr El Jejieh had been denied a real and meaningful opportunity to give evidence and present arguments in relation to the issue of whether his relationship with Ms Maarabani was ever genuine. His Honour appears to have found that Mr El Jejeih was sufficiently on notice that this was an issue on the review because he was “on notice of the criteria that had to be made out” (Judgment at [35]) and because the transcript of the Tribunal hearing revealed that “the Tribunal explored with [Mr El Jejieh] whether or not [Mr El Jejieh] met the relevant criteria in the context of the relationship criteria under the Regulations, both in Lebanon and in Australia”: Judgment at [36].

110    As for the latter of those two points, the primary referred to two short passages in the transcript where the Tribunal questioned Mr El Jejieh about his relationship with Ms Maarabani. Those passages were set out earlier in these reasons. His Honour reasoned, apparently from those passages, that “it ought to have been plain to [Mr El Jejieh] having regard to the matter in which the Tribunal conducted the hearing, and the questions the Tribunal asked that the Tribunal was actively considering the question of whether the relationship between [Mr El Jejieh] and the spouse [Ms Maarabani] was even a spousal relationship”: Judgment at [38].

APPEAL GROUNDS AND SUBMISSIONS

111    Mr El Jejieh’s notice of appeal contained eight grounds of appeal. At the hearing he was granted leave to file an amended notice of appeal which included an additional ground which raised an argument that had not been put to the primary judge. Leave to raise this new ground was granted, over the Minister’s objection, because it raised a short question of construction, the Minister was not prejudiced because his counsel was able to address the new ground in his submissions at the hearing and the new ground appeared to have merit.

112    Grounds 1 and 2 related to the two s 375A certificates that the primary judge held were invalid. Mr El Jejieh contended that the primary judge erred in finding that there was “no practical injustice” caused to him by the issue of those certificates and that his Honour should have found that they “infected the Tribunal decision with jurisdictional error as the documents covered by the certificates might have made a difference to the outcome of the review”.

113    While these grounds of appeal related to both of the s 375A certificates, ultimately Mr El Jejieh’s submissions only addressed the undated s 375A certificate which was revoked on the day the Tribunal made its decision. He submitted that at least some of the documents that were covered by that certificate were not covered by the s 376 certificate and were clearly probative and showed that he had been in a genuine relationship with Ms Maarabani before it broke down. The Tribunal, however, “effectively excluded [them] from its consideration by reason of the purported certificate”. In Mr El Jejieh’s submission, the Tribunal’s decision may have been different if it had taken those documents into account.

114    Grounds 3 and 4 related to the s 376 certificate. Mr El Jejieh contended that the primary judge erred in finding that “no practical injustice was caused to [him] by [him] not being advised of the certificate issued under s 376 of the Act or being given the opportunity to seek the exercise by the Tribunal of its power under s 376(3)(b) of the Act to disclose to him the contents of the documents covered by the certificate”. He contended that the primary judge should have found otherwise. Mr El Jejieh submitted that it could readily be inferred that the documents and information covered by the s 376 certificate were communications emanating from Ms Maarabani which concerned the nature of her relationship with him and that the content of those communications “could have changed the Tribunal’s views on that issue” had he been given the opportunity to “rebut or explain” it.

115    Mr El Jejieh did not press grounds 5 and 6 of the notice of appeal.

116    Grounds 7 and 8 were that the primary judge erred in finding that there was no breach of s 360 of the Act and that his Honour should have found that Mr El Jejieh was “not given the opportunity to give evidence and present arguments on the issue of whether he was ever in a genuine relationship with his spouse”. Mr El Jejieh submitted, in support of these grounds, that he had been granted a Subclass 309 visa on the basis that his spousal relationship with Ms Maarabani was genuine and that, in refusing his Subclass 100 visa application, the delegate found only that the spousal relationship had ended, not that there had never been a genuine relationship. He was accordingly not put on notice that this would be an issue on the review. As for the passages of the transcript relied on by the primary judge, Mr El Jejieh argued that nothing in the Tribunal’s questioning of him, or his answers, suggested that the genuineness of the relationship at the outset was in issue on the review.

117    Ground 9 of the amended notice of appeal, which was the new ground, was that the Tribunal failed to complete the exercise of its jurisdiction because it did not make a finding as to whether the applicant met cl 100.221(4) of Sch 2 to the Regulations. That was the criterion which could be satisfied if the relevant relationship had broken down and the applicant had suffered family violence committed by the sponsor. It will be recalled that the Tribunal did not consider that it was necessary for it to consider Mr El Jejieh’s claim that he suffered family violence committed by Ms Maarabani because it found that there was never a genuine relationship. Mr El Jejieh submitted that, properly construed, cl 100.221(4) did not require him to satisfy the Tribunal that the relationship was genuine at the outset. It was necessary only for him to meet the requirement that he continued to hold a Subclass 309 visa. The Tribunal therefore was in error in considering that it was not necessary for it to consider his claims concerning family violence.

GROUNDS 1 and 2 – materiality of breaches arising from the s 375A certificates

118    While the primary judge did not approach the matter in this way, it is necessary to give separate consideration to: first, the non-disclosure to Mr El Jejieh of the existence of the s 375A certificate dated 22 June 2016 and its notification to the Tribunal; second, the limited disclosure of the undated s 375A certificate and the non-disclosure of the subsequent withdrawal of that certificate; and third, the incorrect notification to the Tribunal that s 375A applied to the documents or information contained in the documents covered by both of the s 375A certificates.

Non-disclosure of the s 375A certificate dated 22 June 2016 and its notification to the Tribunal

119    While the primary judge did not address this issue in his reasons, there is no doubt that the Tribunal’s failure to disclose to Mr El Jejieh the existence of the s 375A certificate dated 22 June 2016 amounted to a breach of the Tribunal’s implied obligation of procedural fairness.

120    In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the Minister conceded that the consequences for a review under Pt 7 of the Act of the Secretary notifying the Tribunal that s 438 applied in relation to a document or information were sufficient for the common law to imply an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review unless such an obligation was specifically excluded by the statutory scheme. The majority in SZMTA concluded that the Minister’s concession was rightly made, reasoning as follows (at [29]-[31]):

The reason why the Minister’s concession is correct is that procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.

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.

The entitlement under s 423 extends to allowing the applicant to present a legal or factual argument in writing either to contest the assertion of the Secretary that s 438 applies to a document or information, or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3). This entitlement, at least in those specific applications, is capable of meaningful exercise only if the applicant is aware of the fact of a notification having been given to the Tribunal.

(Footnote omitted.)

121    There could be no doubt that the same considerations apply to the situation where the Secretary notifies the Tribunal that s 375A of the Act applies in the context of a review under Pt 5 of the Act. While s 375A of the Act is in slightly different terms to s 438 of the Act, like s 438 its effect is to constrain the Tribunal from disclosing a document or information to, inter alia, the applicant. Indeed, unlike s 438 of the Act, s 375A does not confer any discretion on the Tribunal to disclose the document or information to the applicant. Sections 359AA, 359A, 360, and 358 are in relevantly the same terms as ss 424AA, 424A, 425 and 423 of the Act. Notification under s 375A constrains or truncates the Tribunal’s powers under ss 359AA, 359A and 360 and changes the context in which the entitlement of an applicant to give the Tribunal a written statement under s 358 falls to be exercised. In Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305, the Full Court found, for reasons broadly consistent with those given by the majority in SZMTA, that notification under s 375A enlivened an obligation of procedural fairness on the part of the Tribunal to disclose the notification to the applicant for review under Pt 5 of the Act.

122    The majority in SZMTA rejected the Minister’s contention that the obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification was excluded by s 422B of the Act. The same conclusion would apply, in the context of a review under Pt 5 of the Act, if it were to be suggested that the obligation of procedural fairness to disclose the fact of notification under s 375A or s 376 was excluded by s 357A of the Act, which is in relevantly the same terms as s 422B of the Act: see Singh at [35]-[40].

123    It follows that, by failing to disclose to Mr El Jejieh the existence of the s 375A certificate, or more accurately by failing to disclose the Secretary’s notification that s 375A of the Act applied to the document referred to in the certificate, the Tribunal breached its implied obligation of procedural fairness. The primary judge erred in failing to find that the Tribunal had denied Mr El Jejieh procedural fairness in this respect.

124    It does not necessarily follow, however, that this breach gave rise to a jurisdictional error. In SZMTA, the majority said (at [38]):

Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision.

(Footnotes omitted.)

125    The question for the primary judge, therefore, was whether the breaches arising from the failure to disclose the existence of the s 375A notice dated 22 June 2016 gave rise to a practical injustice; whether it resulted in a denial of an opportunity to make submissions and whether that denial was material to the Tribunal’s decision. While the primary judge referred to practical injustice and materiality in a rather broad and global way and by reference to the certificates generally, his Honour did not consider those questions in relation to the non-disclosure of the s 375A certificate specifically, and did not analyse the matter in terms of whether Mr El Jejieh was denied the opportunity to make submissions and whether the denial of that opportunity could have been material to the Tribunal’s decision. His Honour erred in not considering those issues.

126    More will be said about the primary judge’s reasons and conclusion concerning materiality later.

Limited disclosure of the undated s 375A certificate and the non-disclosure of its subsequent withdrawal

127    It may equally be concluded that the Tribunal breached its implied obligation of procedural fairness by failing to disclose to Mr El Jejieh the existence of the undated s 375A certificate until the day of the hearing and to then disclose the existence of the certificate in terms which were not satisfactory or adequate to enable him to make meaningful submissions in relation to it.

128    The terms of the Tribunal’s disclosure were set out earlier in these reasons. The Tribunal did not show or give Mr El Jejieh a copy of the certificate, or give him sufficient details about s 375A, or the contents of the certificate, or the documents covered by it, to enable him to make meaningful submissions concerning its validity. Indeed, the Tribunal trivialised the certificate and its effect by referring to it as “just a piece of paper” and saying that its effect was that “there are other pieces of paper they [the Department] don’t want released … because it contains personal information regarding your sponsor”. The Tribunal also trivialised the matter by saying that Mr El Jejieh could choose to make submissions about the validity of the certificate now, or write to it later “or you can just forget about it”.

129    The primary judge appears to have considered that the Tribunal’s disclosure of the undated s 375A certificate was adequate: Judgment at [28]. If his Honour did so find, his Honour was in error. His Honour did not consider whether the disclosure was sufficient to give Mr El Jejieh, who was not represented at the hearing, a real and genuine opportunity to make meaningful submissions concerning the validity of the certificate. For the reasons already given, had his Honour given consideration to that question, he would or should have been compelled to the conclusion that the disclosure was inadequate.

130    In any event, even if the Tribunal’s disclosure of the undated s 375A certificate was not too late or was not inadequate, it may nevertheless be concluded that the Tribunal breached its implied obligation of procedural fairness by not disclosing to Mr El Jejieh that the certificate was later revoked by the Minister.

131    There could be little doubt that, in the somewhat unique and unusual circumstances of this case, the withdrawal of the certificate resulted in a further alteration to the procedural context. Having told Mr El Jejieh of the existence of the certificate and having apparently resolved that its response to the certificate was to not rely on or give any weight to the information in the documents covered by the certificate, procedural fairness obliged the Tribunal to tell Mr El Jejieh that s 375A no longer applied to those documents and to give him the opportunity to make submissions about what ought to follow from that change.

132    Mr El Jejieh should, for example, have been given the opportunity to submit that some or all of the documents covered by the undated s 375A certificate which had not been disclosed to him because of the certificate should be disclosed to him given the withdrawal of the certificate. He should also, in the circumstances, have been given the opportunity to submit that, if the Tribunal had determined not to consider the information in the documents covered by the certificate, that position should be reversed as a consequence of the withdrawal of the certificate. He should have been given the opportunity to submit that the documents were favourable to his case and should be taken into account and given appropriate weight.

133    The primary judge did not give any consideration to whether the Tribunal breached its implied obligation of procedural fairness by not disclosing to Mr El Jejieh that the undated s 375A certificate had been revoked so that he had the opportunity to make submissions about the implications of that revocation for the review. His Honour erred in giving no consideration to that issue and in not finding that there had been such a denial of procedural fairness.

134    The question whether the denial of the opportunity to make those submissions was material to the Tribunal’s decision and accordingly gave rise to a jurisdictional error is dealt with later.

The invalidity of the s 375A certificates and the incorrect notification to the Tribunal that s 375A of the Act applied

135    In SZMTA, the majority held (at [39]) that if the preconditions in s 438(1) are not met in relation to a document or information, the section has no application and the Secretary had no duty and no authority to notify the Tribunal that s 438 applied in relation to it. A notification in those circumstances would be incorrect and invalid and would amount to “a purported exercise of statutory authority that is devoid of legal effect in relation to that document or information”: SZMTA at [40].

136    The same analysis applies to s 375A of the Act. If the preconditions in s 375A(1) of the Act are not met in relation to a document or information, that section has no application in relation to the document or information. In those circumstances, the Secretary would have no duty and no authority to notify the Tribunal that s 375A of the Act applied to that document or information and any such notification would be incorrect, invalid and a purported exercise of statutory authority devoid of legal effect.

137    The primary judge found that both of the s 375A notices were invalid and of no effect. It must follow, in those circumstances, that the Secretary’s notification to the Tribunal that s 375A applied was invalid and incorrect.

138    Importantly, the majority in SZMTA also found that, while an incorrect, and therefore invalid, notification can give rise to jurisdictional error in the conduct of a review, the mere fact of an invalid notification alone is not sufficient to establish jurisdictional error. Nor is it necessary for an applicant, who wishes to establish that an incorrect notification gave rise to a jurisdictional error, to demonstrate that the notification caused the Tribunal to fail to comply with some distinct obligation imposed on the Tribunal. Rather, the question whether an invalid notification gives rise to a jurisdictional error hinges on the materiality of the “breach”. The majority in SZMTA said as follows in that regard (at [44]):

None of these submissions can be accepted. 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. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, 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.

(Footnotes omitted.)

139    The primary judge did consider, in a broad way, the question of the materiality of the documents covered by the s 375A certificates, or at least one of them. His Honour did not, however, analyse the materiality of the breach arising from the incorrect notifications in the precise way that the decision in SZMTA indicates that it should have been addressed. Nonetheless, it is clear that materiality is the key question in relation to grounds 1 and 2 of the appeal.

The correct approach to materiality

140    In SZMTA, the majority explained the requirement of materiality, in the case of both an undisclosed notification and an incorrect notification, in the following terms (at [45]-[46]):

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

141    The majority noted (at [47]) that, where the Tribunal receives a notification that s 438 applies in relation to a document or information, the Tribunal can be “expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3)”. As has already been noted, there is no similar discretion in the case of a notification under s 375A of the Act.

142    The majority then explained the correct approach, or the correct question to ask, in addressing the question of materiality in the case of an invalid notification (at [48]):

In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

143    In this matter, it was unnecessary for the primary judge to infer that the Tribunal left the documents and information covered by the two s 375A certificates out of account in reaching its decision. That is because the Tribunal expressly stated that it had not relied on, or given weight to, those documents or that information. That was the case even though the undated s 375A certificate had been revoked. The revocation of that certificate apparently did not cause the Tribunal to take a different approach to the information or documents covered by it. The effect of the initial invalid notification therefore continued despite the Minister’s revocation of the certificate.

144    It follows from what was said by the majority in SZMTA that the correct question for the primary judge to address in relation to materiality when it came to the invalid notification of the two s 375A certificates was whether the Tribunal’s decision could have been different if it had taken into account the documents covered by those certificates. Was there any potential for those documents to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take them into account could not realistically have affected the result?

145    As for the question of materiality which arises in the case of a denial of procedural fairness arising from the non-disclosure of a notification, the majority in SZMTA said (at [49]):

Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”, the task is not impossible and can be done in these appeals.

(Footnotes omitted.)

146    There were two key non-disclosures in this case. The first was the non-disclosure of the existence of the s 375A certificate dated 22 June 2016. It follows from what was said by the majority in SZMTA that the question for the primary judge in relation to that non-disclosure was whether the Tribunal’s decision could have been different if the notification had been disclosed so as to allow Mr El Jejieh a full opportunity to make submissions in relation to the validity of that certificate or notification. The second key non-disclosure was the withdrawal of the undated s 375A certificate that occurred on the day that the Tribunal made its decision and published its reasons. The question for the primary judge was whether the Tribunal’s decision could have been different if the withdrawal had been disclosed so as to allow Mr El Jejieh a full opportunity to make submissions, including, for example, that the Tribunal should take the documents that had previously been covered by that certificate into account.

147    As will be discussed shortly, it is readily apparent that the primary judge did not ask himself the correct questions in relation to the non-disclosures.

Materiality of the invalid notification of the undated s 375A certificate

148    The materiality of the invalid notification of the undated s 375A certificate, which was the certificate which was revoked on the day that the Tribunal made its decision and published its reasons is, in some respects, relatively straightforward. As has already been explained, even though this certificate was revoked, the Tribunal nonetheless approached the review on the basis that the documents and information that had been covered by that certificate should not be taken into account. The Tribunal accordingly said that it had not “relied on or put weight on” any information covered by the certificate: Reasons at [12]. Some of the documents that were covered by the certificate, being those that were not covered by the later s 376 notice and the Minister’s public interest immunity claim, were in evidence before the primary judge.

149    As has already been adverted to, the question, put simply, is whether the Tribunal’s decision could have been different if those documents, objectively evaluated, had been taken into account. Were any or all of those documents of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take them into account could not realistically have affected the result?

150    The short answer to those questions is that the Tribunal’s decision could well have been different if the documents had been taken into account. The documents were material to the issues that arose on the review and were not of mere marginal significance. The primary judge erred in finding otherwise.

151    One of the issues that ultimately arose on the review, at least as far as the Tribunal was concerned, was whether Mr El Jejieh and Ms Maarabani were in a genuine relationship from the outset. The question whether the Tribunal appropriately alerted Mr El Jejieh that it considered this to be an issue on the review is considered later in the context of appeal ground 8. Whether it did not, ultimately the Tribunal found that there was never a genuine spousal relationship: Reasons at [89]. It is abundantly clear, however, that a number of the documents that were covered by the undated s 375A certificate and which were therefore not taken into account by the Tribunal were materially probative of that issue and supported a finding, contrary to the one reached by the Tribunal, that the spousal relationship was genuine at the outset and only broke down some time after Mr El Jejieh arrived in Australia.

152    It is sufficient to give but a few examples. There was and is no dispute that each of the documents which are referred to, by way of example, in the following discussion were covered by the undated s 375A certificate that was revoked on the day that the Tribunal made its decision. It is also common ground that the Tribunal did not have regard to any of these documents because it had been notified that s 375A applied to them, even though the certificate that prompted that notification was subsequently revoked. As will be obvious when the content of these documents is revealed, each of them tended to suggest that the spousal relationship was genuine at the time they were created.

153    On 14 August 2014, Ms Maarabani sent an email to the Department asking about Mr El Jejieh’s visa application. This was at a time after Ms Maarabaani and Mr El Jejieh were married and after Mr El Jejieh had applied for both a Subclass 100 and Subclass 309 visa, but before he had been granted the Subclass 309 visa and been able to travel to Australia. In the email, Ms Maarabani stated, amongst other things, that she was depressed because she had not heard anything about her husband’s visa application. She wrote, in that context, that “I want my husband to be on my side, we are married, we want to be together as soon as possible”. She also said, “I want him in Australia asap I’m very concern about my husband I love him very much and I miss him dearly”.

154    Similarly, on 10 September 2014, Ms Maarabani sent an email to the Department about Mr El Jejieh’s visa application. She again said that she wanted him in Australia as soon as possible and that she was not satisfied by the Department’s response to her previous query. She wrote, in that context, “please help me to bring my husband, I’m married we should be together by now if you really understand the value of love”.

155    Ms Maarabani again wrote to the Department on 25 October 2014 about Mr El Jejieh’s visa application and stated about her husband that “he’s a man with hope that wanting a family” and that she and Mr El Jejieh “talk about everything that we want in our future” and “we want to be together as soon as possible”. She also wrote: “we don’t want to wait any longer being in a distant relationship”.

156    On 27 November 2014, Ms Maarabani sent yet another email to the Department about her and Mr El Jejieh’s frustration about the delays in processing Mr El Jejieh’s visa application. In that email, Ms Maarabani said, amongst other things, that “[n]o-one would want to go through that when they have a true relationship” and that she and Mr El Jejieh “want to be TOGETHER as soon as possible, we want to take our relationship to the next level”.

157    Finally, on 10 January 2015, Ms Maarabani wrote to the Department and asked it to bring her husband to Australia as soon as possible and that “[o]ur relationship is genuine, we love each other dearly, we can’t wait to be together”.

158    As was noted earlier, Mr El Jejieh was granted a Subclass 309 visa and entered Australia pursuant to that visa on 28 February 2015. The Minister’s delegate who granted the Subclass 309 visa was satisfied that there was a genuine spousal relationship. Somewhat bizarrely, the Departmental record which recorded that fact was covered by the undated s 375A certificate and was therefore not taken into account by the Tribunal.

159    The primary judge’s reasons for concluding that none of the documents covered by the undated s 375A certificate and which were excluded from consideration by the Tribunal were material were referred to earlier. With respect to his Honour, they are not easy to understand. The fact that there may have been other documents before the Tribunal which supported the genuineness of the relationship does not mean that further evidence along the same lines was not relevant or material. That is particularly the case where the Tribunal’s conclusion that the relationship was never genuine was entirely unsupported by any reasoning. The Tribunal certainly did not refer to the document identified by the primary judge (Judgment at [30]) which also supported the genuineness of the relationship at the outset. That document also significantly predated the documents that were covered by the certificate and not taken into account by the Tribunal.

160    The primary judge also appears to have relied on other evidence that was before the Tribunal which, according to his Honour at least, supported the Tribunal’s finding that there was never any genuine relationship. That evidence included some answers given by Mr El Jejieh to questions asked by the Tribunal about his relationship with Ms Maarabani and the fact that “the total length of time they lived together, both in Lebanon and Australia, was five to six months”: Judgment at [32]. It is, with respect, somewhat questionable that the matters referred to by the primary judge in fact supported the Tribunal’s conclusion. None of them, of course, were referred to by the Tribunal. But even if they did, the fact remained that the documents covered by the certificate which have just been referred to suggested that there was a genuine relationship and yet they were excluded from consideration.

161    That is not to say that the documents would have persuaded the Tribunal that there was, for some period of time before the breakdown, a genuine relationship between Mr El Jejieh and Ms Maarabani. It can, however, safely be concluded that the documents could have resulted in a different decision, and that is all that is required to demonstrate materiality: EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 at [42] citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31].

162    The primary judge erred in concluding that the documents that were excluded from consideration by the Tribunal because they were covered by the undated s 375A certificate which was later revoked were not material. His Honour should have found that the documents were material and that the breach arising from the incorrect and invalid notification that s 375A applied to those documents gave rise to a jurisdictional error.

163    Grounds 1 and 2 of Mr El Jejieh’s amended notice of appeal are accordingly made out.

Materiality of the Tribunal’s denial of procedural fairness

164    As already discussed, the Tribunal denied Mr El Jejieh procedural fairness because: first, its disclosure of the existence of the undated s 375A certificate was unsatisfactory and did not give Mr El Jejieh a reasonable opportunity to make submissions concerning its validity; second, it did not disclose to Mr El Jejieh that the undated s 375A certificate was later revoked by the Minister and thereby denied him the opportunity to make submissions about the disclosure of the documents previously covered by that certificate; and third, it failed to disclose the existence of the s 375A certificate dated 22 June 2016 and give Mr El Jejieh the opportunity to make submissions concerning its validity.

165    The question of the materiality of the breaches of the rules of procedural fairness arising from the inadequate disclosure of the undated s 375A certificate and its subsequent withdrawal has effectively already been dealt with. A number of the documents covered by that certificate suggested, contrary to the conclusion ultimately reached by the Tribunal, that there was a genuine spousal relationship between Mr El Jejieh and Ms Maarabani at the outset. Those documents were relevant and material to that issue and could not be said to have been of only marginal significance. The Tribunal did not have regard to those documents because they were initially covered by the undated s 375A certificate. It did not change its stance after the revocation of the certificate.

166    Had Mr El Jejieh been given a proper opportunity to make submissions concerning the validity of the undated s 375A certificate, or had he been given the opportunity to make submissions concerning the withdrawal of that certificate, the result could have been that Mr El Jejieh could have obtained access to the documents that were favourable to his case. He could then have submitted to the Tribunal that it should have regard to those documents. Had that occurred, the result could, realistically, have been different. The primary judge erred in effectively concluding otherwise.

167    As for the denial of procedural fairness arising from the non-disclosure of the s 375A certificate dated 22 June 2016, it unnecessary and perhaps undesirable to express any concluded view on the materiality of that breach. That is because Mr El Jejieh did not submit that this breach was material. It would appear that no submissions were made in that regard because the Minister’s public interest immunity claim in respect of the document covered by this s 375A certificate was upheld. Accordingly, Mr El Jejieh remained entirely in the dark about that document and the information contained within it. It was difficult, in those circumstances, for him to submit that, had he been able to submit that the s 375A certificate was invalid and therefore been able to obtain access to the document covered by it, that might realistically have resulted in a different decision by the Tribunal.

168    As discussed in more detail later in the context of appeal grounds 3 and 4, it is a rather unsatisfactory state of affairs that the Minister is able to defend a demonstrable denial of procedural fairness by successfully claiming public interest immunity in respect of a document covered by an undisclosed s 375A certificate and then submitting that, in those circumstances, the materiality of the breach cannot be demonstrated. Yet that is what occurred here.

169    Despite that, there is reason to infer that the document covered by the s 375A certificate dated 22 June 2016 was not of only marginal significance. It was a document which was said to contain an “allegation”. The inescapable inference is that it was an allegation against Mr El Jejieh, most likely concerning the nature or state of his relationship with Ms Maarabani. It does not necessarily follow, however, that the document or the information in it was necessarily adverse to Mr El Jejieh’s case. Nor does it necessarily follow that, had Mr El Jejieh been able to make submissions concerning the validity of the certificate and obtain access to the document, he may not have been able to adduce further evidence, or make further or different submissions, so as to address the information in the document. It is not inconceivable that the course taken by Mr El Jejieh, had he been able to obtain access to the relevant document, could have had a bearing on the outcome of the review. That is the case even though the Tribunal ultimately said that it did not “put weight on” the document covered by the certificate. For the reasons already given, however, it is unnecessary to reach a concluded view in respect of this issue.

GROUNDS 3 AND 4 – NON-DISCLOSURE OF THE S 376 CERIFICATE AND PROCEDURAL FAIRNESS

170    The Tribunal also breached its implied obligation to afford procedural fairness to Mr El Jejieh by failing to notify him of the existence of the s 376 certificate and notification. The Tribunal never disclosed the s 376 certificate or notification to Mr El Jejieh. Procedural fairness required it to be disclosed. The non-disclosure, without more, was a breach of the Tribunal’s obligation of procedural fairness: SZMTA at [38]. The only real question is whether that breach was material and gave rise to a jurisdictional error.

171    The primary judge found that the s 376 certificate was valid. Mr El Jejieh did not challenge that finding on appeal. It follows that the question whether he was denied procedural fairness must be addressed on the basis that the s 376 certificate was valid. It is difficult, in those circumstances, to see how the fact that Mr El Jejieh was denied the opportunity to make submissions concerning the validity of the certificate could be seen to be material to the Tribunal’s decision.

172    That is not, however, the end of the matter. That is because, as has already been pointed out, the Tribunal had a discretion under s 376(3)(b) of the Act to disclose to Mr El Jejieh the documents covered by the s 376 certificate, or the information in them. In those circumstances, procedural fairness plainly obliged the Tribunal to fully disclose the s 376 certificate to Mr El Jejieh so that he had an opportunity to submit that the Tribunal should exercise that discretion. That did not occur in this case.

173    The primary judge did not address the question whether the Tribunal denied Mr El Jejieh procedural fairness by not disclosing the s 376 certificate to him and not giving him the opportunity to make submissions about whether the Tribunal should exercise its discretion in s 376(3)(b) of the Act. His Honour erred in not addressing those issues, they being squarely raised in Mr El Jejieh’s grounds of review and submissions. His Honour also erred in not finding that there had been such a denial of procedural fairness.

174    The question of the materiality of that breach and whether it gave rise to a jurisdictional error is more difficult. That is because it is not known precisely what documents were covered by the s 376 certificate. The Minister claimed public interest immunity in relation to those documents and that claim was upheld by the primary judge. While that decision was questionable, it was not challenged on appeal. The upshot is that, because it is not known precisely what documents were covered by the s 376 certificate and notification, it is somewhat difficult to say whether, had Mr El Jejieh not been denied the opportunity to make submissions to the Tribunal that it should disclose the documents to him in the exercise of its discretion under s 376(3)(b) of the Act, that could realistically have resulted in a different outcome.

175    That was, and is, a somewhat unsatisfactory state of affairs. The Tribunal plainly denied Mr El Jejieh procedural fairness by not disclosing to him the certificate and notification under s 376 of the Act. Yet the Minister was able to effectively hinder Mr El Jejieh’s review of the Tribunal’s exercise of jurisdiction on that basis by claiming public interest immunity in relation to the very documents covered by the certificate and notification and submitting that, because the documents were not before the Circuit Court, Mr El Jejieh could not discharge his onus of demonstrating that the denial of procedural fairness was material. That hardly seems consistent with the Minister’s obligations as a model litigant. That is particularly the case where, as here, the public interest immunity claim was somewhat dubious.

176    In this case, however, it is possible, despite the Minister’s successful public interest immunity claim, to draw inferences about the nature of the documents, or at least some of them, which were covered by the s 376 certificate and notification.

177    As adverted to earlier in these reasons, all of the documents covered by the s 376 certificate were previously covered by the undated s 375A certificate which was revoked on the same day that the s 376 certificate was issued. It may safely be assumed that the documents covered by the s 376 certificate did not include documents which merely contained “information regarding immigration processes”, which was one of the category of documents covered by the undated s 375A certificate. It follows that the documents covered by the s 376 certificate were documents which formerly fell within the other category of documents covered by the s 375A certificate, being documents which contained “personal information of Sponsor”. The basis of the s 376 certificate was that the documents were given to the Minister or an officer of the Department “in confidence”. The Minister’s public interest immunity claim was based on the claim that the documents disclosed the existence of a “confidential source of information”. The almost inescapable inference to be drawn from the combination of these facts and circumstances is that the documents covered by the s 376 certificate, or at least some of them, were communications from the “Sponsor”, namely Ms Maarabani.

178    The availability of that inference is strengthened when consideration is given to the content of some of the documents which were included in the Court Book which was tendered in the Circuit Court (which was replicated in the Appeal Book in this Court) which advert to the existence of communications from Ms Maarabani which would otherwise be expected to be, but which were not, included in the Court Book. For example, the delegate’s decision in relation to Mr El Jejieh’s Subclass 100 visa stated that, on 17 December 2015, the Department received information that the relationship between Mr El Jejieh and Ms Maarabani had broken down. The Court Book did not include any document recording that communication or receipt of that information.

179    Other documents that were included in the Court Book made it clear that it was Ms Maarabani who provided that information. For example, the delegate’s reasons referred to the “sponsor [having] withdrawn her support” for Mr El Jejieh’s visa application because the relationship had broken down. The delegate also stated that Mr El Jejieh’s sponsor contacted the Department on 17 December 2015 to notify that the relationship had broken down.

180    The available inference is that the communication of 17 December 2015, which included information that the relationship had broken down, emanated from Ms Maarabani and was covered by both the s 376 certificate and the Minister’s public interest immunity claim.

181    Similarly, included in the Court Book was a letter from the Department to Ms Maarabani dated 7 January 2016. That letter referred to Ms Marrabani’s “recent notification” that she “wish[ed] to withdraw” her nomination in support of Mr El Jejieh’s application for a permanent visa on “spouse grounds”. That “notification” by Ms Maarabani was also not included in the Court Book and, it may be inferred, was also covered by the s 376 certificate and the Minister’s public interest immunity claim.

182    There are also indications that Ms Maarabani sent other emails or communications to the Department and that those communications were not included in the Court Book. The material contained in the Court Book included an email from the Department to Ms Maarabani dated 16 February 2016 which referred to an email sent by Ms Maarabani. The Department’s email noted that the information provided by Ms Maarabani had been added to the “file”. The material in the Court Book did not include a copy of Ms Maarabani’s email that prompted this reply. The affidavit sworn in support of the Minister’s claim of public interest immunity, however, included a redacted copy of an email received by the Department on 11 February 2016. The author and content of that email are redacted. The available inference, in all the circumstances, is that Ms Maarabani was the author of the email.

183    It may also readily be inferred that the communications that the Department received from Ms Maarabani which were the subject of both the s 376 certificate and the Minister’s public interest immunity claim concerned the nature of the relationship between Mr El Jejieh and Ms Maarabani and the breakdown of that relationship which led to Ms Maarabani’s withdrawal of her sponsorship. Those issues were at the very heart of the Tribunal’s review. While the precise nature of the information contained in the communications is unknown, it may nevertheless safely be concluded that the information was not likely to be of “marginal significance to the issues which arose in the review”: cf SZMTA at [48].

184    It may also be inferred that, had Mr El Jejieh been given the opportunity to persuade the Tribunal that it should exercise its discretion under s 376(3)(b) of the Act and disclose the documents to him, his access to those documents may have led him to give further evidence, or make further or different submissions, about the nature of his relationship with Ms Maarabani and the circumstances in which it broke down. That additional evidence, or the additional or different submissions, may realistically have had a bearing on the outcome of the review. There is no sound basis to conclude otherwise. The documents may well have been favourable to Mr El Jejieh’s case, like some of the documents covered by the revoked s 375A certificate. If that was the case, Mr El Jejieh could have urged the Tribunal to have regard to them. Even if some of the information in the documents was adverse to his case in some way, however, they may have prompted Mr El Jejieh to address that adverse information in some way. It is immaterial, in this context, that the Tribunal said that it gave no weight to the documents.

185    As the majority in SZMTA noted (at [49], citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145), “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”. While that statement rather suggests that it is for a respondent to demonstrate that a denial of procedural fairness could have had no bearing, it is clear from SZMTA that Mr El Jejieh bore the onus of proving that the Tribunal’s denial of procedural fairness arising from the non-disclosure of the s 376 certificate was material and could have resulted in a different decision. While the matter is somewhat borderline, on balance it cannot be concluded that the Tribunal’s denial of procedural fairness could have had no bearing on its decision. Mr El Jejieh accordingly discharged his onus of proving materiality.

186    The primary judge’s reasons for concluding that there was no practical injustice arising from the Tribunal’s non-disclosure of the s 376 certificate are somewhat cursory and difficult to understand. His Honour referred to the fact that the Tribunal said that it gave no weight to the documents covered by the certificate. That does not provide a definitive answer to the point that, had Mr El Jejieh been given the opportunity to persuade the Tribunal to exercise its discretion to disclose the documents to him, he may have given additional evidence, or advanced additional or different submissions based on the documents, which may in turn have led to a different result. Otherwise, the primary judge simply concluded that, for the reasons he had given in relation to the incorrect and invalid notification of the s 375A certificate, “the documents the subject of this evidence cannot be said to be material”: Judgment at [34]. It is difficult to see how his Honour arrived at that definitive conclusion given that he also did not know the exact content of the documents covered by the s 376 certificate. In any event, for the reasons that have been given, that conclusion was wrong.

187    The Tribunal breached its implied obligation to afford procedural fairness to Mr El Jejieh by failing to notify him of the existence of the s 376 certificate and notification. That breach was material. It certainly cannot be concluded that it was not material. The findings made by the primary judge concerning this issue were erroneous. Grounds 3 and 4 of Mr El Jejieh’s amended notice of appeal are accordingly made out.

GROUNDS 7 AND 8 – BREACH OF S 360 OF THE ACT

188    Section 360(1) of the Act provided 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” (emphasis added). The Tribunal invited Mr El Jejieh to appear before the Tribunal to give evidence and present arguments. Mr El Jejieh accepted that invitation and gave evidence before the Tribunal. As was noted earlier, the Tribunal found, amongst other things, that he and Ms Maarabani had never been in a genuine spousal relationship.

189    The issue raised by these appeal grounds is whether Mr El Jejieh was sufficiently put on notice that the genuineness of his spousal relationship with Ms Maarabani from the outset was an “issue arising in relation to the decision under review” such that he was given a sufficient opportunity to give evidence and make submissions in relation to that issue in accordance with s 360(1) of the Act. The primary judge concluded that it “ought to have been plain” to Mr El Jejieh that the genuineness of his relationship was being “actively consider[ed]” by the Tribunal: Judgment at [38]. His Honour erred in so concluding.

190    The starting point is that Mr El Jejieh was granted a Subclass 309 visa on the basis that he and Ms Maarabani were in a genuine spousal relationship. While his application for a Subclass 100 visa was subsequently refused, the delegate’s reasons for refusing that application were, in essence, that the relationship between Mr El Jejieh and Ms Maarabani had broken down. The delegate did not find that they had never been in a genuine relationship. Indeed, it is implicit in the delegate’s reasons that there was a genuine spousal relationship between the pair before it broke down.

191    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court considered what was required for the “issues arising in relation to the decision under review” to be sufficiently identified for the purposes of s 425(1) of the Act, which is in relevantly identical terms to s 360(1) of the Act. The situation that arose in that case was that a protection visa applicant had based his application on the occurrence of three events. The Minister’s delegate refused the application because the accuracy of the applicant’s account of one of those events was not accepted. The applicant was invited to a hearing and was asked questions about all three events. The Tribunal did not challenge the accuracy of the applicant’s account of the other two events. The Tribunal affirmed the decision under review. Its reasons indicated that it found that the other two events were implausible.

192    The High Court found that Tribunal had not given the applicant a “sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review”: SZBEL at [44]. The court’s reasons for so finding included (at [35]-[36]):

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

193    Applying those observations to the facts of this case, there could be no question whatsoever that Mr El Jejieh was entitled to assume that the reasons given by the delegate for refusing to grant his Subclass 100 application relevantly identified the issues that arose in relation to the review. Those delegate’s reasons revealed that the Mr El Jejieh’s application was refused because his relationship with Ms Maarabani had broken down. Mr El Jejieh was entitled to assume that that was essentially the only issue that arose in the review, other than his claim of family violence which was, in some respects, a response to that finding. The Tribunal took no step to identify any other issue.

194    Specifically, the Tribunal did not identify, for the benefit of Mr El Jejieh, that the genuineness of his relationship with Ms Maarabani from the outset was an issue arising in relation to the review. The Tribunal’s hearing invitation did not identify that as an issue. Nor did any other correspondence that the Tribunal sent to Mr El Jejieh in relation to the review. The Tribunal said nothing at the commencement of the hearing, and nothing during the course of the hearing, which identified the issues on the review.

195    The primary judge found that two short passages from the transcript somehow put Mr El Jejieh on notice that the genuineness of his relationship with Ms Maarabani from the outset was a live issue on the review. His Honour was wrong to so conclude.

196    The two passages were set out earlier in these reasons. In the first passage, the Tribunal asked Mr El Jejieh whether he ever got “any companionship or emotional support” from his wife. Mr El Jejieh’s response: was “No. Maybe in Lebanon yeah. Here no.” The mere fact that the Tribunal asked Mr El Jejieh whether he ever received companionship or emotional support from his wife did not, in all the circumstances, alert Mr El Jejieh to the fact that the genuineness of his relationship was in issue. It may also be noted that it was implicit in Mr El Jejieh’s response that he did initially receive companionship and emotional support from his wife while they were in Lebanon. That only changed some time after he joined her in Australia. That evidence clearly suggested that the relationship was genuine at the outset. The Tribunal did not challenge that evidence in any way, or give any indication that it was in issue or might not be accepted.

197    Exactly the same can be said in relation to the second passage relied on by the primary judge. After asking Mr El Jejieh about how long he and his wife lived together, the Tribunal again asked Mr El Jejieh about the “degree of companionship and emotional support” that he and his wife “drew from each other”. Mr El Jejieh responded, entirely consistently with his earlier evidence: “Lebanon was good but here [in Australia] no. After one month like everything is gone”. The Tribunal’s questioning of Mr El Jejieh in this respect gave no hint to Mr El Jejieh that the genuineness of his relationship with Ms Maarabani from the outset was in issue. Mr El Jejieh’s evidence in response, which again suggested that the relationship was a genuine one, was not challenged or questioned by the Tribunal in any way.

198    To make matters worse, the two passage relied on by the primary judge plainly must be read in the context of the Tribunal’s questioning of Mr El Jejieh as a whole. Indeed, the passages had to be read in the context of the hearing as a whole. A fair reading of the hearing transcript as a whole reveals that nothing said by the Tribunal alerted Mr El Jejieh to the fact that the genuineness of his relationship with Ms Maarabani from the outset was an issue for the review.

199    In circumstances where it was accepted at the Subclass 309 visa stage that the relationship between Mr El Jejieh and Ms Maarabani was a genuine spousal relationship, and the delegate’s decision was based on the breakdown of that relationship, not on any finding that there had never been a genuine spousal relationship, the Tribunal was obliged to somehow put Mr El Jejieh on notice that the genuineness of his relationship with Ms Maarabani was nevertheless an issue on the review. It did not do so. It follows that the Tribunal did not give Mr El Jejieh a sufficient opportunity to give evidence, or make submissions, about what turned out to be an important issue in the disposition of his review application. The Tribunal accordingly failed to comply with s 360 of the Act. The primary judge erred in concluding otherwise.

200    Grounds 7 and 8 of Mr El Jejieh’s amended notice of appeal are accordingly made out.

201    It should finally be observed that the Tribunal’s finding that there was never a genuine spousal relationship between Mr El Jejieh was also problematic and a matter of some concern. That is because, as discussed earlier in these reasons, it was almost entirely unsupported by any logical or probative reasoning. Most of the Tribunal’s findings related to the state of the relationship at the time of the decision. The Tribunal itself had identified that as the central issue in the review. Given that it was essentially common ground that by that point the relationship had ceased, it is not surprising that the Tribunal found that Mr El Jejieh was not the spouse of Ms Maarabani at the time of the decision. The finding that there was never a genuine spousal relationship appears almost to have been an afterthought, or perhaps a finding made so as to avoid the necessity of determining what was a potentially more difficult issue. That provides a convenient segue to the final ground of appeal.

GROUND 9 – FAILURE TO MAKE FINDINGS CONCERNING FAMILY VIOLENCE

202    This ground of appeal raises an issue that was not ventilated before the primary judge. Mr El Jejieh was given leave to raise it on appeal notwithstanding. It hinges on the proper construction of the criterion in cl 100.221(4) of Sch 2 to the Regulations.

203    The relevant criteria for the grant of a Subclass 100 visa were outlined earlier in these reasons. One way that Mr El Jejieh was able to meet the criteria was to establish that he: was the holder of a Subclass 309 visa; was the spouse of his sponsoring partner; and two years had passed since he applied for the visa: cl 100.221(2) Another way he was able to meet the criteria was to establish that he: first entered Australia as the holder of a Subclass 309 visa; continued to hold that visa; would meet the requirements of cl 100.221(2) except that the relationship between him and his sponsoring partner had ceased; and he had suffered family violence committed by the sponsoring partner: cl 100.221(4).

204    It was tolerably clear that Mr El Jejieh was pursuing his review application before the Tribunal on the basis of cl 100.221(4). He had provided material to the Tribunal which included claims that he had suffered family violence committed by Ms Maarabani. The Tribunal was aware of those claims and asked Mr El Jejieh about them during the hearing. The Tribunal, however, made no findings concerning those claims. It found that it did not need to make any such findings because it found that there had never been a genuine spousal relationship between Mr El Jejieh and Ms Maarabani. In so finding, the Tribunal misconstrued the requirements of cl 100.221(4) and, as a result, failed to complete the exercise of its review jurisdiction.

205    The requirements of cl 100.221(4) have just been set out. They do not include a requirement that the applicant demonstrate that the applicant’s relationship with his or her sponsoring partner was a genuine relationship. The applicant does have to establish that he or she entered Australia as the holder of a subclass 309 visa and continued to hold that visa. A criterion for the grant of a subclass 309 visa is that the applicant was, at the time of application and decision, a spouse of, relevantly, an Australian citizen. Thus, if the applicant establishes that he or she held a Subclass 309 visa at the time they entered Australia and continued to hold that visa, in a sense that demonstrates that they were the spouse of an Australian citizen. But they do not need to demonstrate that fact separately. They need only demonstrate that they held and continue to hold a Subclass 309 visa.

206    It might perhaps be argued that the requirement, in cl 100.221(4)(b), which involves the cessation of the relationship between the applicant and the sponsoring partner, implies that there was a relationship in the first place. For the reasons already given, however, the relevant requirement in cl 100.221(4) is that the applicant held and continued to hold a Subclass 309 visa, not that there was a relationship. It might perhaps be added, in this context, that if the Minister became aware of information that suggested that the applicant for a Subclass 100 visa who held a Subclass 309 visa was never in a genuine relationship with his or her spouse, it would most likely be open to the Minister to cancel the applicant’s Subclass 309 visa. It would then follow that the applicant would not meet the criteria for the grant of a Subclass 100 visa. That did not, however, occur in this case.

207    Mr El Jejieh entered Australia as the holder of a Subclass 309 visa and continued to hold that visa at the time of his review application. While his relationship with Ms Maarabani had ceased by that time, he claimed that he met cl 100.221(4) because he suffered family violence committed by Ms Maarabani. The Tribunal was required to consider that claim. Its failure to do so was amounted to a failure of it to exercise its review jurisdiction.

208    Grounds 9 of Mr El Jejieh’s amended notice of appeal is accordingly made out.

CONCLUSION AND DISPOSITION

209    Mr El Jejieh made out all of the grounds of appeal that he pressed. It is unnecessary to repeat those grounds. His appeal must be allowed with costs. The orders made by the primary judge should be set aside and in lieu thereof, it should be ordered that the Tribunal’s decision made on 26 June 2018 be set aside and Mr El Jejieh’s review application be remitted to the Tribunal, differently constituted, to be determined in accordance with law.

Associate:

Dated:    3 August 2020