EAO22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1336

1. Before the Court is an application for constitutional writ relief under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 15 November 2022. The Tribunal affirmed the decision of a delegate of the First Respondent refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (protection visa) under s 65 of the Act.
2. To obtain the relief sought the applicant must prove that the Tribunal's decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]. And LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2]- [3] (LPDT).
3. In most cases, but not all, the jurisdictional error must also be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32]. This relatively new principle of materiality was revealed by the High Court in a series of recent cases, including in LPDT.
4. Further, the Court has a residual judicial discretion to refuse the grant of such relief, where jurisdictional error has occurred, if circumstances justify the remedy being withheld: SZBYR v Minister for Immigration and Citizenship [1981] HCA 26; (2007) 147 CLR 297 at [28] and R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400.
5. In this case the applicant submits the Tribunal breached s 424A, and the relief sought should be granted. The first respondent concedes the Tribunal breached s 424A. However, the first respondent submits either, there was an independent basis for the Tribunal's decision unaffected by the breach of s 424A, or there was no material jurisdictional error, or that the grant of relief should be refused in the exercise of the Court's residual discretion.

1. The applicant, a citizen of Lebanon, has a lengthy migration history. In February 2006, the applicant arrived in Australia as the holder of a visitor visa (subclass 600) (visitor visa) and remained in Australia until 4 May 2006. On 11 April 2008, he returned on a further visitor visa and remained in Australia until 8 July 2008. On 25 February 2009, he returned to Australia again, this time as the holder of a Prospective Marriage (Subclass 300) visa on the basis of his relationship with an Australian citizen. He has remained in Australia since this time.
2. On 16 September 2009, the applicant lodged a Combined Partner (Subclass 820) and Partner (Subclass 801) visa on the basis of his relationship with an Australian citizen (first sponsor). In 2012, the applicant was advised that the Department had received information that the relationship had ceased and in response he claimed to have suffered family violence.
3. On 17 January 2013, after a delegate of the Minister found that the applicant did not meet the family violence provisions, he withdrew that application.
4. On 15 January 2013, two days before withdrawing his other partner visa application, the applicant lodged a second partner visa application (partner visa) on the basis of his relationship with another Australian citizen (second sponsor). That partner visa application was refused by a delegate on 7 January 2016. The applicant unsuccessfully sought review of that visa refusal in the Tribunal and on 16 December 2016 (First Tribunal), the First Tribunal affirmed the delegate's decision not to grant a partner visa.
5. On 7 January 2017, 22 days after his partner visa review application was dismissed, the applicant lodged an application for a Protection (Class XA) Subclass 866 visa (protection visa).
6. The applicant claimed fear of harm from the Lebanese authorities as well his father, extended family, and "fanatic Muslim groups" in Lebanon on the basis of his commitment to the Jehovah's Witness faith. The applicant claimed he was introduced to the faith by his second partner and started attending Kingdom Hall's with her around the second half of 2014 before attending on his own after his second partner moved to Queensland. The applicant also claimed that his siblings found out about his attendance at Kingdom Hall and informed his father, who threatened to kill him if he returned to Lebanon.
7. On 5 April 2017, the applicant attended an interview before a delegate.
8. On 11 September 2017, a delegate refused to grant a protection visa. On 19 September 2017, the applicant applied to the Tribunal for review of the delegate's decision.
9. On 4 May 2022, the applicant was invited to attend a hearing on 20 May 2021, which he attended with the assistance of his lawyer. Prior to the hearing, the applicant, through his lawyer, provided further written submissions and a signed declaration dated 13 May 2021 to the Tribunal along with four supporting letters from witnesses who claimed to have studied the Jehovah's Witness faith with the applicant. On 21 May 2021, the applicant, through his lawyer, provided post hearing submissions to the Tribunal.
10. On 15 November 2022, the Tribunal affirmed the delegate's decision not to grant a protection visa (Second Tribunal).

1. After setting out the evidence relied upon by the applicant, including post hearing submissions, the Second Tribunal identified the issue in this case as whether the applicant is a 'refugee' or a person who meets the requirements for 'complementary protection' and whether the applicant is a member of the same family unit as a person who holds a protection visa because they are a 'refugee' or has meet the requirements for 'complementary protection.'
2. The Second Tribunal noted the applicant's protection claims stemmed from his religious belief as a Muslim convert to the Jehovah's witness faith. Because of this conversion, he claimed he would be harmed in Lebanon by immediate and extended family members, and that he would be harmed because he would not be able to practise his faith freely in Lebanon as detailed in his written submission dated 30 May 2021.
3. Before assessing the various claims made, the Second Tribunal made a finding at the outset that, ultimately, after considering all the evidence, it was not satisfied that there was a real risk of serious harm to the applicant in Lebanon, or that there was a real chance of significant harm to the applicant in Lebanon arising from any of the claims he made.

Assessment of claim relating to being married to an Australian citizen with an Australian citizen child

1. The Second Tribunal accepted that the applicant is married to an Australian citizen and is the father of an Australian citizen son. The Second Tribunal also accepted the general principle that it is in the best interests of children (although exceptions apply) for a family unit to remain together. However, this was not the issue being considered by the Second Tribunal. The issue was whether there is a real chance of serious harm to the applicant in Lebanon due to his race, religion, nationality, membership of a particular social group or political opinion, or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Lebanon, there is a real risk the applicant will suffer significant harm. The applicant did not provide the Second Tribunal with any evidence about the alleged harm he would suffer as a result of his wife and child relocating with him: see Tribunal decision at paragraphs [54]-[57].

Assessment of fact that the applicant did not leave Australia after his first partner visa was withdrawn on 1 January 2013

1. The Second Tribunal also considered the applicant's first partner visa, which he lodged in September 2009 with his first sponsor. In July 2012, the applicant told the Second Tribunal that he and the first sponsor had divorced. The applicant's first visa subsequently ceased in January 2013. The applicant did not leave Australia after his first partner visa had been withdrawn and ultimately ceased: see Second Tribunal decision paragraph [60].
2. At the Second Tribunal hearing, the Tribunal asked the applicant why he did not leave Australia and return to Lebanon after his divorce with his first sponsor. The applicant said he did not leave because he was 'still lawful here' and also that he was trying to 'restore the relationship' with the first sponsor.
3. The Second Tribunal accepted that the applicant was lawfully permitted to remain in Australia on the grant of the temporary partner visa until that visa ceased on 17 January 2013. However, the applicant did not leave Australia despite the stated purpose of his presence in Australia ceasing. The Second Tribunal's assessment, considering all other evidence, was that the applicant's willingness to remain in Australia despite the ceasing of that relationship was to be indicative of a longstanding desire to permanently migrate to Australia: see Second Tribunal decision at paragraphs [61]-[63].

Assessment of the evidence given by the applicant on 16 December 2015 to the [First] Tribunal hearing the review of the second partner visa refusal

1. The Second Tribunal assessed the evidence, and at paragraph [64] the Tribunal Member said he listened to the recording of the hearing, given by the applicant to the Tribunal on 16 December 2015 (First Tribunal), which reviewed the second partner visa refusal. At the First Tribunal Hearing on 16 December 2015, the applicant detailed the circumstances of the breakdown of the relationship and discussed his introduction to the Jehovah's Witness faith through his second sponsor. He stated that although he was not religious when he met the second sponsor, the second sponsor said she could not be with the applicant because they were not the same religion. The applicant started to attend Kingdom Hall with the second sponsor. The applicant told the First Tribunal that he still goes to Kingdom Hall and was attempting to convert to that faith: see Second Tribunal decision at paragraph [65].
2. The Second Tribunal noted that the applicant told the First Tribunal the relationship with the second sponsor ended approximately a week and a half prior to the 16 December 2015 hearing. The applicant stated that he wanted to know what was going on with the relationship with the second sponsor and why the relationship ended and when he had this knowledge, he would be able to go back to Lebanon: see Second Tribunal decision paragraph [66].
3. The Second Tribunal observed that on 16 December 2015 the First Tribunal affirmed the decision to refuse to grant the applicant a permanent partner visa. On 9 January 2017 (being 22 days later), the applicant lodged his protection visa application where he claimed in the protection visa application form that he would be harmed or mistreated if he returned to Lebanon: see Second Tribunal decision paragraph [67].
4. The Second Tribunal accepted that the applicant gave evidence at the 16 December 2015 hearing before the First Tribunal that he attended Kingdom Hall sessions with the second sponsor and that they did so "as a family". However, the Second Tribunal found that given what the applicant said about why he started attending Kingdom Hall, and the second sponsor's view about how they could not live together as a couple because they were both not Jehovah's Witnesses, the Second Tribunal's assessment was that the applicant engaged in that religious activity in order to maintain his family unit: see Second Tribunal decision paragraph [70].
5. The Second Tribunal noted that the applicant told the First Tribunal he was "not religious". The Second Tribunal did not accept that if the applicant was a genuine convert to the Jehovah's Witness faith by 16 December 2015, or was attending or participating in religious activity connected with that faith for reasons other than trying to maintain his family unit, he would describe himself as "not religious" at that point in time: see Second Tribunal decision paragraph [71].
6. The applicant also told the First Tribunal that he would be prepared to return to Lebanon but wanted to understand why his relationship broke down before doing so. The Second Tribunal found it incredulous to its way of thinking that the applicant would suggest at the 16 December 2015 hearing before the First Tribunal that he would be prepared to return to Lebanon once he had clarity about his relationship with the second sponsor: see Second Tribunal decision paragraph [72].
7. The Second Tribunal noted that the applicant told the Second Tribunal at the 20 May 2021 hearing that he realised that it would not be safe for him to return to Lebanon once he changed his religion. He told the Second Tribunal he changed his religion in 2015 and that he started studying the Bible from 2016: see Second Tribunal decision paragraph [74].
8. The applicant told the Second Tribunal changing his religion to Jehovah's Witness meant that he could not return to Lebanon because he comes from a Muslim family and that it was 'well known' that if any person converted from Islam to another faith they will be exposed to being killed.' Although the applicant said to the Second Tribunal it was prohibited for a Muslim to convert to another religion in Lebanon the Second Tribunal observed that there was no law in Lebanon preventing people from converting their religion. When asked whether the applicant considered himself to be Jehovah's witness, he said he did. The Tribunal asked the applicant when he considered that he became a Jehovah's witness, the applicant said he started the study in 2016. He also said he still attends Kingdom Hall but not in Bankstown as he had previously, he now attends Kingdom Hall in Villawood: see Second Tribunal decision paragraphs [75]-[77].
9. The Second Tribunal was not persuaded that the applicant genuinely feared harm in Lebanon from his 'strict family members' or from any other person, group or authority in Lebanon. The Second Tribunal stated that if the applicant had any such fear, then the applicant would not have indicated at the First Tribunal hearing on 16 December 2015 that he would be willing to return to Lebanon once he understood why his relationship with the second sponsor had ended: see Second Tribunal decision paragraph [78].
10. The Second Tribunal was not persuaded that the applicant genuinely feared harm in Lebanon from his claimed 'strict family members' or from any other person, group or authority in Lebanon. The Second Tribunal was satisfied the applicant would not have indicated at the Second Tribunal hearing on 16 December 2015 that he would be willing to return to Lebanon once he understood why his relationship with the second sponsor had ended. The Second Tribunal's assessment was that the applicant would not have made that statement if he had any fear of harm in Lebanon based on being a Jehovah's Witness: see Second Tribunal decision paragraph [78].
11. The Second Tribunal was not persuaded that the applicant's family in Lebanon, who were apparently very strict, would not have issue with the applicant's conversion to the Jehovah's witness faith as at December 2015 and then 22 days later, when the applicant lodged the protection visa application, that the applicant's father would kill him or that the applicant would otherwise be harmed by the applicant's immediate and extended Muslim family. The Second Tribunal was satisfied that the applicant had fabricated the claimed threat of harm and the claimed opposition from his immediate and extended family for the purpose of lodging his protection claim: see Second Tribunal decision paragraph [79].

Assessment of claims relating to the applicant's religious belief, being a Jehovah's Witness

1. The Second Tribunal next considered the applicant's claims relating to his religious belief as a Jehovah's Witness. It was the Second Tribunal's assessment that the applicant did not engage in Jehovah's Witness activity because he was a genuine convert to the religion but instead that the applicant participated as part of family activity with the second sponsor.
2. Importantly, the Second Tribunal found the applicant was not a genuine convert to the Jehovah's Witness faith. The Second Tribunal was satisfied that the applicant's activity with the Jehovah's witness congregation from 2016 was done solely to achieve a protection visa. The Second Tribunal was not satisfied that the applicant would continue with his religious practise in Lebanon: see Second Tribunal decision paragraph [83].
3. Then at paragraph [85] the Second Tribunal posed the following issue:

The question for the Tribunal then becomes whether the applicant would be at risk of harm in Lebanon because of his religious practice as a Jehovah's Witness in Australia.

1. On this issue, the Second Tribunal had regard to country information, namely, the Immigration and Refugee Board of Canada publication "Lebanon: Situation of Jehovah's witnesses, including treatment by society and authorities; state protection available in cases of discrimination and mistreatment (2006 - November 2013)" dated 12 November 2013, as well as the 19 March 2019 DFAT Country Information Report on Lebanon. The Second Tribunal found as follows at paragraph [87]:

The 19 March 2019 DFAT Country Information Report on Lebanon identifies Jehovah's Witnesses as one of the 'unrecognised religious groups' in Lebanon, in contrast to the 19 recognised religious confessions in Lebanon. The report detailed no harm directed at Jehovah's Witnesses in Lebanon and noted the Tribunal's assessment that if there were any such instances of harm directed towards that group, it is likely that this would be contained in the report. The Tribunal observed to the applicant during the Tribunal hearing that the report detailed no harm directed at Jehovah's Witnesses in Lebanon and noted the Tribunal's assessment that if there were any such instances of harm directed towards that group, it is likely that this would be contained in the report. Despite what the applicant said about converting from Islam to another religion being prohibited, that report also notes that Lebanese are able to change their religious affiliation legally, and there is not prohibition on proselytization in Lebanon. The Tribunal is not persuaded that the evidence demonstrates that the Jehovah's Witnesses in Lebanon face a real chance of serious harm. Their small population and limited number of Kingdom Halls does not mean that they are persecuted. In any event, the Tribunal is not satisfied that the applicant would engage in any religious practice with the Jehovah's Witnesses in Lebanon for the reasons previously discussed.

1. Then, at paragraph [88]-[90] the Second Tribunal concluded:
   1. In the applicant's particular circumstances, the Tribunal is not satisfied that the applicant will practice as a Jehovah's Witness in Lebanon in any event. The Tribunal is not satisfied that the applicant's immediate or extended family have expressed any threat to him and is not satisfied that there is a real risk of harm to the applicant from his immediate or extended family to him in Lebanon based on his involvement with the Jehovah's Witnesses in Australia.
   2. The Tribunal is satisfied that the applicant has a longstanding desire to migrate permanently to Australia and that there is no truth to the claimed threats or opposition to the applicant because of his claimed religious belief, or the fact that the applicant has engaged in religious activity in Australia with the Jehovah's Witnesses.
   3. The Tribunal is satisfied that this was fabricated in order to improve his protection visa claims.
2. For these reasons, the Second Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. On 15 December 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal's confirmation decision dated 22 November 2022. The application contains

one ground of review. The sole ground is as follows: 1. The Tribunal failed to comply with the requirements of section 424A of the Migration Act 1958 in relation to the following information:

a. The applicant was not a Jehovah's Witness;

b. The applicant said he was not religious;

1. The applicant said he really wished to know what was going on with that relationship and why it ended the way it did. The applicant said if he had that knowledge, he would be able to go back to Lebanon;

because the Tribunal did not issue a written invitation to comment on or respond to that information and it did not follow the procedure in s 424AA(b)(ii) and s 424AA(b)(iii) of the Act in respect of the information, thus s 424A(2A) of the Act was not engaged by the Tribunal.

1. At the final hearing of this matter on 16 June 2025, Mr David Godwin of counsel appeared on behalf of the applicant instructed by Ms Chitra of Teleo Immigration Lawyers. Mr Greg Johnson of counsel appeared on behalf of the first respondent instructed by Ms Warren of Sparke Helmore.
2. In the first respondent's submissions filed on 2 June 2025, the first respondent conceded the Tribunal breached s 424A, but submitted, formally, that the breach did not constitute a "material" jurisdictional error based on the application of the principles set out in LPDT at [5]-[7]. The first respondent also submitted, in the alternative, that if the principle of materiality did not apply, then the Court should exercise its discretion of the kind referred to in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Aala), to refuse writ relief against the second respondent.
3. As a result of the first respondent's submissions, and prior to the hearing on 16 June 2025, I asked the parties if the determination of the matter also required consideration of cases such as, VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (VBAP); VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 (VCAD); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; [2004] 238 FCR 588 (VUAX).
4. At the beginning of the hearing, I indicated what I understood were the issues before the Court as a result of the written submissions filed by the parties prior to the hearing. They were:

(a) First Issue: If there was a breach of s 424A of the Act, are the principles of materiality applicable?

(b) Second Issue: Was there an independent basis (or separate pathway of reasoning) for the Tribunal's decision?

(c) Third Issue: If the Tribunal committed jurisdictional error, should the Court exercise its discretion to refuse the writ relief sought by the applicant?

1. At the hearing before me, counsel for both parties addressed the Court on these issues. At the conclusion of the hearing, I allowed both parties to file supplementary written submissions. Both parties have filed supplementary written submissions in accordance with the timetable I set at the conclusion of the hearing on 16 June 2025.
2. Counsel for both parties agreed the three issues I have outlined above were the issues in this matter which I had to decide. Both parties also agreed that if I decided against the applicant on the second issue then I would not need to go on to consider the third issue, as it would be unnecessary. As I have found against the applicant on the second issue, I have not considered the third issue. My consideration of the first two issues is as follows.

1. The applicant submitted the Second Tribunal committed jurisdictional error by failing to comply with s 424A in relation to information given by the applicant at the First Tribunal review hearing on 16 December 2015 regarding the applicant's second partner visa application, which was refused (second partner visa refusal information). The hearing on 16 December 2015 occurred before he made his protection visa application to the Department. The applicant submitted the second partner visa refusal information was used or deployed by the Second Tribunal in its decision at paragraphs [65]-[72] and [78]-[79].
2. The applicant submitted that the second partner visa refusal information was the basis for the adverse findings made by the Second Tribunal that the applicant:

(i) did not genuinely fear harm in Lebanon form his claimed 'strict family members' or from any other person, group or authority in Lebanon (see paragraph [78]),

(ii) fabricated that claimed threat and the claimed opposition from his immediate and extended family for the purpose of lodging his protection claim (paragraph [79]); and

(iii) was not a genuine convert to the Jehovah's Witness faith (see paragraph [84]).

1. The applicant submitted that the second partner visa refusal information was thus "information" which the Tribunal considered would be part of the reason for affirming the delegate's decision and, in its terms, undermined the applicant's claim for protection. Therefore, it was submitted, the obligations under s 424A of the Act were engaged, however no written invitation to comment or respond to this information was provided to the applicant, and nor did the Tribunal comply with the procedure in in s 424AA(b) (ii) and 424AA (b)(iii) of the Act.
2. For this reason, the applicant submitted that the Second Tribunal failed to comply with s 424A.
3. The applicant also submitted that a breach of s 424A constituted a jurisdictional error "with no materiality content". The applicant relied upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (SAAP) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400 (Antoon) to make that submission. In other words, the applicant submitted that non-compliance with s 424A(1) constituted a jurisdictional error regardless of whether the error was material or not.

First respondent's submissions on the First Issue

1. The first respondent, in its submissions, accepted that the second partner visa refusal information relied on by the Tribunal, adversely to the applicant, was information it needed to invite the applicant to comment upon under s 424A(1)(a)-(c), and that the Tribunal consequently failed to comply with s 424A: applying SAAP.
2. The first respondent submitted that the error was not material but that the Court could not accept that submission in light of SAAP and Wigney J's decision in Antoon. However, the first respondent formally submitted that Antoon was wrong in finding that SAAP was authority for the proposition that want of compliance with s 424A renders a decision invalid without an assessment of the materiality of the non-compliance.
3. The first respondent submitted however that the Court should find that the non-compliance with s 424A in the present case did not result in the conclusion that the Tribunal's decision was affected by a jurisdictional error. The first respondent submitted that the Tribunal's decision was supported by an independent basis that was not affected by jurisdictional error.

1. I find that the Tribunal failed to comply with s 424A of the Act when it failed under s 424A(1)(a)-(c) to invite the applicant to comment on or respond to information that was part of the reason for affirming the delegate's decision under review, namely the second partner visa refusal information. The second partner visa refusal information was "information" under s 424A because it was the reason or part of the reason for the findings made by the Second Tribunal that the applicant was not a genuine convert to the Jehovah's Witness faith (see paragraph [71]).
2. Both parties accepted there was a breach of s 424A. Where the parties differed was on whether the Court was required to assess if the non-compliance with s 424A was material before finding that the error of law was a jurisdictional error. The applicant submitted, relying on Wigney J's judgment in Antoon, the Court must find that non-compliance with s 424A is a jurisdictional error rendering the Tribunal decision invalid regardless of whether the non-compliance with s 424A was material, or not.
3. I note the first respondent formal submission that Antoon was wrong in relation to its finding that SAAP was authority for the proposition that want of compliance with s 424A renders a decision invalid without an assessment of the materiality of the non-compliance.
4. However, this Court is bound by Antoon and by the earlier High Court decision in SAAP. Therefore, as the law currently stands, a purported jurisdictional error based on non-compliance with s 424A does not require the Court to assess the materiality of the non-compliance before finding if there was jurisdictional error. In other words, I accept the applicant's submission the assessment of materiality as outlined in LPDT at [32] does not apply to a breach of s 424A.

1. At paragraph [1] of his supplementary written submissions the applicant submits:

The applicant's primary position, as explained in oral submissions is that there is no independent basis for the Tribunal's decision unaffected by the error. That is because the adverse information from the previous Tribunal decision was used to support its finding that the applicant did not genuinely fear harm in Lebanon for whatever reason - he having said that he was prepared to return to Lebanon - this was dispositive of the application as the subjective requirement for persecution in s5J(1)(a) of the Migration Act had not been satisfied-it applied to his claimed fear of his family and villagers (being specific fears of harm raised by him) whether or not Jehovah's witnesses were otherwise persecuted in Lebanon.

1. The applicant also argued that the High Court decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain) superseded (or overtook) the earlier Federal Court of Australia decisions of VBAP, VCAD and VUAX. Now, it was submitted, the question was one of materiality based on questions of statutory construction, not whether there was an independent or alternative basis on which the Tribunal's decision could be supported.
2. As to this, the applicant submitted as follows at paragraph [6] of his supplementary written submissions:

The High Court [in Hossain] did not accept that the conclusion reached in relation to public interest criterion 4004 was in any way affected by the failure to consider information between the time of the making of the delegate's decision and the making of the Tribunal decision. In those circumstances the issue for determination by the High Court was whether, there being an unaffected basis for refusing the visa the error by the Tribunal was jurisdictional. In addressing this question, the Court made its seminal statements about materiality being a matter of statutory implication. The outcome was that in a case where there was an unaffected basis for the Tribunal's decision the error was not material because the statute required that the visa be refused as the other criteria had not been met. The provision in question was the exercise of the Tribunal of its power under s 349 to affirm a visa refusal under s 65 of the Migration Act- being the same provisions in question here.

1. The applicant submitted at paragraph [8] of his written supplementary submissions that it followed that Perram J's decision in Minister for Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989 (Qazizada) was in error for the following reasons:

(a) Hossain was a binding High Court decision on a specific question of construction that could not be distinguished on the facts.

(b) Hossain overtook the earlier Federal Court authorities (VBAP, VCAD and VUAX) on that question of construction.

(c) The point of distinction relied upon by Perram J - the lack of power analysis - was not a distinguishing analysis as in fact it was included in analysis used by the High Court.

(d) The cases referred to by Perram J also predate SAAP and the finding by the High Court on the jurisdictional nature of a breach of s424A the cognate provision to s 359A.

1. The applicant also submitted that Perram J's decision regarding an independent path, or alternative bases, for supporting a Tribunal's decision, was obiter dicta, and not the ratio of Qazizada, and so should not be followed by this Court.
2. On what Hossain had done to the law, the applicant submitted at paragraph [10] of his supplementary written submissions:

The High Court in Hossain was conducting an exercise in Construction. That exercise was to determine the proper approach of a reviewing Court where there were 2 bases for refusing a visa-and only one of those bases was affected by error. There is no reason to consider that that analysis was not of general application to decisions to affirm under s 349 of the Act the refusal to grant a visa under s 65 of the Migration Act- that being the relevant statutory context being considered by the High Court.

1. At paragraph [11] the applicant further submitted:

It follows that earlier decisions by the Federal Court concerning that question were superseded by the High Court's decision. Further, while not referred to by the Court in its reasons, the judgment of Gray J in VCAD was at the forefront of the Minister's submissions to the High Court in Hossain.

1. The applicant submitted that Perram J's decision in Qazizada was wrong to find VBAP, VCAD and VUAX a line of authority that operates separately from materiality - at least where the matter in issue is the decision to affirm the decision to refuse the grant of a visa under s 65 of the Act: see paragraph [12] of the applicant's supplementary written submissions.
2. The applicant concluded on this issue at paragraph [13] that Perram J was also wrong in Qazizada to distinguish Hossain as being unrelated to power, and referred extensively to the various passages in Hossain to support this submission.

First respondent's submissions on the Second Issue

1. The first respondent submitted that the "several independent pathways" analysis discussed by Perram J in Qazizada which relied on and applied the earlier Federal Court authorities of VBAP, VCAD and VUAX, remains good law and that nothing in Hossain changed that position.
2. The first respondent submitted that based on the authorities of VBAP, VCAD and VUAX, if the Court found there was several independent pathways to affirming the delegate's decision under review, then no jurisdictional error is shown by only impugning one of those pathways: see Qazizada at [21].
3. The first respondent submitted that while Perram J's findings in Qazizada were obiter, this Court must follow Perram J's judgment. In support of this submission the first respondent relied upon Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [38] where their Honours stated:

Even if the Federal Magistrate was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court and judgments of single judges of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court. The correct principle is that a judgment ought to be followed unless it is plainly wrong. Lander J referred to the relevant authorities in Cooper v Commissioner of Taxation [2004] FCA 1063; (2004) 210 ALR 635 at [46].

1. In addressing the applicant's supplementary written submissions on Hossain, and Perram J's reasoning in Qazizada, the first respondent submitted at paragraph [7] of his supplementary written submissions:

Acknowledging that this path of reasoning might just be another way of saying that the error was not material (in the "modern" sense), Perram J said:

It is true that an alternate path to that conclusion might lie in the parallel reasoning disclosed in the High Court's decision in Hossain. However, since that case is concerned with materiality in the context of jurisdictional error, I would prefer not to reason in that fashion because of the uncertainty identified by Wigney J in Antoon concerning the operation of SAAP.

1. And at paragraph [8] - [9]:
   1. It is important to recognise that Perram J described the Hossain path to the conclusion as an "alternate path". That is against the applicant's submission that those earlier cases have been overridden by Hossain. The Court would not readily come to that conclusion. None of the mentioned cases was considered in Hossain. The better view - and indeed the view expressed by Perram J - was that the "modern" materiality analysis was an alternate path to the same destination.
   2. This Court should follow Qazizada at [24] (at least for reasons of judicial comity) and find that to the extent the Tribunal's decision in this case was supported by a path of reasoning that was separate and independent of the s 424A non-compliance, the decision was not affected by a jurisdictional error.
2. The first respondent submitted that the failure of the Tribunal to comply with s 424A in the present case was only one pathway. The first respondent submitted that in the Tribunal decision there was another independent unimpugned pathway to affirming the delegate's decision under review that was unaffected by that jurisdictional error, that is one unaffected by the failure of the Tribunal to put the "information", namely the second partner visa information, to the applicant for comment under s 424A.
3. The unimpugned pathway, it was submitted, was found in paragraphs [85]-[88] of the Tribunal's decision. In those paragraphs the first respondent submitted that the Tribunal identified an alternative pathway to affirming the delegate's decision, namely, the finding that, Jehovah's Witnesses do not face a real chance of serious harm in Lebanon. The first respondent submitted this finding was made in the alternative to the Tribunal's finding that it did not accept the applicant was a Jehovah's Witness, and was the alternative or independent basis for the decision to affirm the decision, one unaffected by the Tribunal's failure to comply with s 424A.

1. It has been held by the Federal Court for a long time that where there are several separate or independent pathways to affirming the decision being reviewed by the Tribunal, jurisdictional error is not shown by impugning only one of those pathways.
2. In VBAP North J held at [32]- [33]:
   1. It was argued on behalf of the appellant that if a breach of s 424A of the Act in this respect had been shown, then as a result of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 15; (2005) 215 ALR 162 (SAAP), the decision of the Tribunal must be set aside. I cannot accept this submission.
   2. As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal's decision, and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.
3. In VCAD Gray J held at [22]-[23]:
   1. It is true, as counsel for the appellant submitted, that the Tribunal's expressed reasons can be taken to expose its reasoning. They may reveal errors of omission or commission. See Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ. This does not lead to the conclusion that, whenever the Tribunal's reasons disclose that it has made an error, its decision must be set aside. In order to be a jurisdictional error of one of the kinds described by McHugh, Gummow and Hayne JJ in Yusuf at [82], the error must be of a kind that "affects the exercise of power". The powers of the Tribunal are found in s 415 of the Migration Act. They include powers to affirm or vary a decision, and the power to set aside a decision and substitute a new decision. When the Tribunal's decision as to how it will exercise its powers is based on a conclusion unrelated to the error, the exercise of power is not affected. Kenny J was correct in holding that the Tribunal's decision in the present case was based on its finding as to the amnesty, so that the error in the Tribunal's approach to the law requiring compulsory military service in the appellant's country of origin did not affect the exercise of the Tribunal's power.
   2. There have been numerous cases in which decisions of tribunals under the Migration Act have been upheld, notwithstanding error apparent in the tribunals' reasons, because those reasons also disclose that there is another basis on which the tribunal concerned found against the person applying for a visa. Recent examples include NAIF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 114 at [17], VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] and NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086 at [24].
4. In VCAD at [45], Sunberg and North JJ essentially agreed with Gray J on the issue of independent or alternative pathways to affirming the decision under review.
5. VBAP and VCAD followed on from an earlier decision of the Full Court in VUAX, which decided that a Tribunal does not commit jurisdictional error if its decision can be supported on an independent or alterative basis which is unaffected by jurisdictional error: see VUAX at [55]-[57] per Kiefel, Weinberg and Stone JJ.
6. In Hossain, the High Court held that in most cases a legal error is not jurisdictional unless it is material. Hossain was not a s 424A case. The appellant argued in Hossain that the Tribunal had committed jurisdictional error by misconstruing a clause in the Migration Regulations 1994 (Cth) (clause 820.211(2)(d)(ii)) which contained prescribed criteria for the granting of the visa that was applied for, namely a partner visa. The Tribunal also found the appellant had not satisfied separate public interest criteria because the applicant had not paid a debt he owed to the Commonwealth. The Minister argued the non-satisfaction of the public interest criteria, in relation to the debt he owed to the Commonwealth, was an independent basis on which the Tribunal was bound to affirm the delegate's decision.
7. In dismissing the appeal, a majority of the High Court found for the Minister but preferred to base its decision on the newly discovered principle of materiality. Their Honours found at [29] that:

Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

1. By applying this principle, the majority in Hossain found at [35] that the breach of clause 820.211(2)(d)(ii) could have made no difference to the decision which the Tribunal in fact made to affirm the decision of the delegate. This was because the Tribunal could not have been satisfied that the public interest criterion regarding the issue of the non-payment of the Commonwealth debt was met.
2. In Antoon Wigney J considered, relevantly, whether the Court was bound to conclude that non-compliance with s 424A constituted jurisdictional error without any consideration of materiality. His Honour concluded that the High Court decision in SAAP had that effect. His Honour found at [92]:

There is undoubtedly a degree of tension between the decision of the majority justices in SAAP and the reasoning of the majority justices in Hossain, SZMTA and MZAPC. It is difficult to see any sound basis for concluding that the implication of the threshold of materiality would not apply in the case of breaches of ss 359A and 424A of the Act. Nevertheless, SAAP has not been overruled, expressly or impliedly, and remains authority for the proposition that a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal's decision. Any tension or inconsistency between that proposition and the reasoning in Hossain, SZMTA and MZAPC must be resolved by the High Court, not a single judge of this Court.

1. In Qazizada, Perram J was also asked to consider whether a breach of s 359A (a cognate provision to s 424A) constituted jurisdictional error without consideration of materiality. Perram J decided that there was no breach of s359A because no obligation arose under s 359A, based on the particular facts of that case. Despite that, Perram J went on in his judgment to consider at length the issue of whether there was an independent pathway to affirming the delegate's decision, being one which was not impugned by jurisdictional error, and whether a non-compliance with s359A would have constituted jurisdictional error without consideration of materiality. His Honour gave detailed consideration to these issues in his judgment at [21]-[25], despite his primary finding there had been no breach of s 359A.
2. At [21] Perram J held:

Consistently with common sense, it has been held by this Court that where there are several independent paths to affirming a decision under review, no jurisdictional error is shown by impugning only one of those paths: see, for example, VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 ('VBAP') at [33] per North J, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 ('VCAD') at [22]-[23] per Gray J, [45] per Sundberg and North JJ; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 ('VUAX') at 600-601 [55]-[57] per Kiefel, Weinberg and Stone JJ.

1. At [22]-[23] Perram J held that SAAP, which found that a failure to comply with s 424A constituted a jurisdictional error, predated the discovery by the High Court of materiality. His Honour held that SAAP had not as yet been overruled by the High Court, and that Antoon was authority for the proposition that the Federal Court remained bound to conclude that a breach of s 424A constitutes a jurisdictional error without any consideration of materiality.
2. On the issue of the independent pathway analysis from the earlier Federal Court cases, Perram J held at [24] that:
   1. ... neither SAAP nor Antoon was a case where the Tribunal had at least two independent reasons for affirming a decision under review, only one of which was impugned. I do not read SAAP or Antoon as saying anything about that question. Consequently, the matter is governed by VBAP, VCAD and VUAX. In this case, the Tribunal was expressly authorised to exercise the powers that had been exercised by the delegate: s 349(1) of the Act. The power exercised by the delegate was the power in s 65. Section 65(1) required the delegate (and hence the Tribunal) to refuse the grant of the visa unless satisfied that the requirements for that visa (including both the Australian relative and carer criteria) were satisfied. Having concluded that the carer criterion was not satisfied, the Tribunal had no power under s 65(1) to grant the visa and was required by s 65(1)(b) to affirm the delegate's decision to refuse to grant it. The fact that it breached s 359A(1) in arriving at the conclusion that the Australian relative criterion was not satisfied can have no impact on the validity of its decision to affirm the decision to refuse the visa. By virtue of its conclusion that the carer criterion was not satisfied the Tribunal was under a legal duty arising from s 65(2) to affirm the delegate's decision. This analysis is concerned with power and is unrelated to materiality. There was no jurisdictional error. It is true that an alternate path to that conclusion might lie in the parallel reasoning disclosed in the High Court's decision in Hossain. However, since that case is concerned with materiality in the context of jurisdictional error, I would prefer not to reason in that fashion because of the uncertainty identified by Wigney J in Antoon concerning the operation of SAAP.
3. At [25] Perram J concluded:

I thus respectfully differ from the learned primary judge on this issue. Her Honour thought that this case was enmeshed in the debate about SAAP and materiality identified by Wigney J in Antoon. However, those cases were not apposite for the reasons I have given. Had it been necessary to do so, I would have upheld Ground 2 of the notice of appeal.

1. I agree with the first respondent that the "modern" materiality analysis in Hossain, is, on close analysis, probably just an alternate path to the same destination as that decided in the earlier cases of VBAP, VCAD or VUAX. Justice Perram said as much when his Honour referred to the reasoning on materiality by the High Court in Hossain as "parallel reasoning" at [24] in Qazizada.
2. I also agree with the first respondent, as Perram J held in Qazizada, nothing in Hossain or Antoon suggests that the earlier cases of VBAP, VCAD or VUAX have been overtaken or overturned, as was submitted by the applicant. Those cases remain good law.

1. The applicant submitted (as outlined above) that paragraphs [21]-[25] in Qazizada are obiter and therefore this Court is not bound to follow what was said in those paragraphs. I disagree.
2. This Court is bound by judgments of the Federal Court, whether they are a judgment of a single judge exercising original or appellate jurisdiction, or a judgment of the Full Court: SZANS at [36] and [38]; Suh v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515 at [29] per Spender, Buchanan and Perram JJ. I also consider that this includes "considered" obiter of the Federal Court irrespective of the capacity in which it is pronounced by that Court: see SZANS at [38] and CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 (CEPU) at [51]-[55] per Lucev J. See also O Jones, 'When is the Federal Magistrates Court bound by the Federal Court?' [2012] 86 ALJ 478 at 483-5, and see Ward J (as her Honour then was) in Ying v Song [2009] NSWSC 1344, where at [21]-[25] her Honour discusses the meaning of "considered" obiter, holding that it means more than just "passing remarks".
3. If paragraphs [21]-[25] of Qazizada are obiter_,_ then given the detailed analysis in those paragraphs by Perram J, there is no doubt to my mind that those paragraphs were "considered" obiter. For these reasons, I consider I am bound to follow what was said in paragraphs [21]-[25] Qazizada. It follows that I am also bound by the earlier Federal Court cases of VBAP, VCAD or VUAX.

Is there an independent basis for the Tribunal decision?

1. It also follows from this that if I find that there was a separate or independent basis or pathway on which the Tribunal, in the present case, relied on to affirm the delegate's decision, unaffected by any jurisdictional error, then despite the Tribunal's non-compliance with s 424A, the Tribunal's decision will not be vitiated by jurisdictional error.
2. On a fair reading of the Tribunal's decision in the present case, I consider, for the following reasons, there are two separate or independent pathways relied upon by the Tribunal to affirm the delegate's decision. One pathway is impugned by jurisdictional error, the other is not.
3. The first pathway is found in paragraph [78]-[79] and [84], where the Tribunal found that the applicant did not genuinely fear harm in Lebanon from his claimed 'strict family members' or from any other person, group or authority in Lebanon (see paragraph [78]), that he fabricated that claimed threat and the claimed opposition from his immediate and extended family for the purpose of lodging his protection claim (paragraph [79]), and that he was not a genuine convert to the Jehovah's Witness faith (paragraph [84]).
4. The second pathway is found in paragraphs [85] to [87] of the Tribunal decision, where the Tribunal found that based on independent country information, Jehovah's Witnesses do not face a real chance of serious harm in Lebanon.
5. Paragraph [85] reads as follows:

The question for the Tribunal then becomes whether the applicant would be at risk of harm in Lebanon because of his religious practice as a Jehovah's Witness in Australia.

1. The relevant part of paragraph [87] reads as follows:

...The Tribunal is not persuaded that the evidence demonstrates that the Jehovah's Witnesses in Lebanon face a real chance of serious harm. Their small population and limited number of Kingdom Halls does not mean that they are persecuted. In any event, the Tribunal is not satisfied that the applicant would engage in any religious practice with the Jehovah's Witnesses in Lebanon for the reasons previously discussed.

1. The way the issue is framed in paragraph [85], read with the last sentence of paragraph [87], supports the conclusion that paragraph [87] contains an independent basis for affirming the delegate's decision. They support a fair reading of what the Tribunal was doing in paragraph [87]. In paragraph [87] the Tribunal was assuming, in the alternative, that the applicant was a genuine Jehovah's Witness, and it found on that basis there was no real chance the applicant would suffer serious harm in Lebanon.
2. The first pathway identified above is affected by jurisdictional error, namely non-compliance with s 424A. I find that the second partner visa refusal information was the basis for the adverse findings made by the Second Tribunal in paragraphs [78], [79] and [84] which led to the non-compliance with s 424A.
3. The second pathway in paragraphs [85] to [87], however, was independent and separate from the first pathway. It was a finding based on country information referred to in paragraphs [86] and [87] of the Tribunal decision, and on the counterfactual assumption that the applicant was a Jehovah's Witness. At paragraph [87] the Tribunal found that Jehovah's Witnesses "do not face a real chance of serious harm" in Lebanon. The second pathway does not rely upon facts or findings relating to the second partner visa refusal information, and therefore no s 424A issue arises in relation to this pathway. I do not accept Mr Godwin's submission that the second partner visa refusal information had any bearing on, or affected, the Tribunal's finding in paragraph [87] - rather, it was solely based on country information. I find that the second pathway in paragraph [87] is a pathway to affirming the delegate's decision which is unaffected by jurisdictional error.
4. Consequently, applying VBAP, VCAD and VUAX, the Tribunal's decision is not vitiated by jurisdictional error.

1. As outlined above, the Court has a residual judicial discretion to refuse the grant of such constitutional writ relief, where jurisdictional error has occurred, if circumstances justify the remedy being withheld: see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. This was confirmed recently by Edelman J in Hossain at [73]-[74].
2. However, as I have found that the Second Tribunal has not committed jurisdictional error, it is not necessary for me to consider the third issue.

1. The first respondent seeks costs fixed in the sum of $8,371.30. The Court has power to award costs in a fixed sum: see Federal Circuit and Family Court of Australia Act 2021 (Cth), s 214; Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), r 22.02(2)(a) and r 29.13.
2. In the case of a proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if where migration proceedings have concluded (currently the scale amount is $8,371.30): see r 29.13(1), Schedule 2, Part 2, Division 1, item 3. The amount sought by the Minister is for the scale amount of $8,371.30. Mr Godwin, on behalf of the applicant, did not oppose the amount being sought. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.