El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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.

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.