Application of the principles to the facts and circumstances of the case
76 The starting point for the consideration of what information the Tribunal would consider to be the reason, or part of the reason, for affirming the decision under review is the relevant criteria for the grant of the Partner Visa in Mr Ibrahim's case. The relevant criteria were the criteria in cll 801.221 and 801.226 of Schedule 2 to the Regulations: specifically, whether Mr Ibrahim was the spouse of his sponsor, Ms El-Etri, and whether he had provided false or misleading information to the Department or the Tribunal in relation to that question. Section 5F of the Act provides that a person is the spouse of another person if the two persons are in a "married relationship" and that persons are in a married relationship if, amongst other things, they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them is genuine and continuing, and they live together or do not live separately and apart on a permanent basis.
77 It follows that any information contained in the two emails sent to the Department by Ms El-Etri would constitute information that would be the reason, or part of the reason, for affirming the delegate's decision to refuse to grant the Partner Visa to Mr Ibrahim if the Tribunal considered that the information would in some way amount to a rejection, denial or undermining of Mr Ibrahim's claim that he was Ms El-Etri's spouse, and that the information which he had provided to the Department to that effect was not in any way false or misleading.
78 There could be no doubt that the emails contained such information. The question is, however, whether the Tribunal gave Mr Ibrahim clear particulars of all the information that fell into that category. Is there any evidence or necessary inference that during the review the Tribunal considered that any information which was not included in the particulars it gave to Mr Ibrahim at the hearing would have been a reason, or part of the reason, for affirming the refusal to grant the visa to Mr Ibrahim?
79 The first point to note is that there is no basis to conclude or infer that the Tribunal considered that all of the information in the two emails was information which would be the reason, or part of the reason, for affirming the decision under review. The Tribunal was accordingly not required to provide all of the information in the emails to Mr Ibrahim. Mr Ibrahim's submission to the contrary is rejected.
80 The evidence concerning what occurred during the hearing, and the inferences able to be drawn from the Tribunal's reasons, suggest that the Tribunal considered that some of the information in the two emails would be the reason, or part of the reason, for finding that Mr Ibrahim did not satisfy the relevant visa criteria, and that the decision under review should therefore be affirmed. The information that met that description was, in substance or in summary, information that: Ms El-Etri wanted to withdraw her sponsorship of Mr Ibrahim; Ms El-Etri said that her marriage to Mr Ibrahim was not real or was "fake"; Ms El-Etri never lived with Mr Ibrahim at the same address; Ms El-Etri remained in a relationship with her ex-husband with whom she had children; Mr Ibrahim remained in a relationship with his ex-wife in Egypt; Ms El-Etri married Mr Ibrahim in return for a payment of money; Ms El-Etri was no longer in Australia; Mr Ibrahim contacted Ms El-Etri in June or July 2015, after the delegate had written to Mr Ibrahim after the first email, and told Ms El-Etri to lie to the Department about why she sent the first email; Ms El-Etri completed documents that Mr Ibrahim wanted her to complete because of threats made by Mr Ibrahim; and that while Mr Ibrahim had put Ms El-Etri's name on some bank accounts and "other things", they had never lived together in Australia.
81 It is clear that the Tribunal considered that the information in the emails concerning those matters would be the reason, or part of the reason, for finding that Ms El-Etri was not Mr Ibrahim's spouse and that the information Mr Ibrahim had provided to suggest that Ms El-Etri was his spouse was false and misleading.
82 The information in the two emails essentially went no further than the summary that has just been given. While there may have been some more minor additional detail about certain matters, that further detail was of little, if any, significance to Mr Ibrahim's application for the Partner Visa. More importantly, there was and is no basis to conclude that the Tribunal considered that any additional information in the emails would of itself be information which would be the reason, or part of the reason, for affirming the decision under review.
83 For example, while the first email included information to the effect that Mr Ibrahim's lawyer was not a truthful lawyer and knew that Ms El-Etri was marrying Mr Ibrahim for money, there is nothing to suggest that the Tribunal considered that such information would be the reason, or part of the reason, for affirming the decision under review. The apparent involvement of the lawyer did not, of itself, add anything of significance to the information that Ms El-Etri did not consider that the marriage was real and that she only married Mr Ibrahim for the money. It follows that the fact that Mr Ibrahim, if advised of that additional information, could have obtained evidence to refute it, is not to the point.
84 Similarly, the fact that the first email included information that the lawyer made Ms El-Etri sign documents so he or Mr Ibrahim could give her $10,000 "first" was of no significance. There was nothing to suggest that the Tribunal considered that additional piece of information to be the reason, or part of the reason, for affirming the delegate's decision. It did not add anything to the information, which was disclosed, to the effect that the marriage was fake and that Ms El-Etri only married for the money that she was to be given. Mr Ibrahim contended that if that additional information was disclosed he could have made submissions about the unreliability of Ms El-Etri based on the supposed inconsistency between this information and information in the second email about a payment of $3,000. It is by no means clear that there was in fact any such inconsistency, as Ms El-Etri did not appear to state in the first email that she in fact received $10,000. In any event, the fact remains that there is nothing to suggest that the additional information about the promised payment of $10,000 was information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision.
85 The same point can be made concerning the other specific piece of information that Mr Ibrahim claims he was not given by the Tribunal. That information was that Ms El-Etri had allowed her name to be provided not just to the bank, but also to "instrumentalities". That additional information was of no particular moment in circumstances where the Tribunal had disclosed to Mr Ibrahim that Ms El-Etri had said that he had put her name and address on some bank accounts and "other things". The reference to "other things" was sufficiently broad to include instrumentalities. In any event, the main point, or rather the substance of the information, was that Mr Ibrahim and Ms El-Etri never lived together, even if their names did appear on bank accounts and on bills from instrumentalities.
86 It should also be noted in this context that Mr Ibrahim's contention that the Tribunal was required to disclose the emails in their entirety because, by reason of reg 1.15A of the Regulations, he was required to consider the "whole of the circumstances of the relationship" between Mr Ibrahim and Ms El-Etri, has no merit. While the Tribunal was required to consider the whole relationship, it does not follow that every piece of information in the emails, including any additional information which was not disclosed, was considered by the Tribunal to be the reason, or part of the reason, for affirming the decision that is under review.
87 The second point is that, unlike the circumstances in, for example, SZNKO and Khan, the facts and circumstances of this case were not such that the Tribunal was required to disclose the full context in which the information it did disclose appeared or was recorded. Indeed, disclosure of the entire emails, or any further information that may have been contained in them, would not have relevantly or materially assisted Mr Ibrahim to respond or comment on the information in a meaningful way. The emails were in many respects difficult to understand because of the poor grammar and spelling employed in them. The Tribunal's distillation of the information in the emails which it considered would be the reason, or part of the reason, for affirming the refusal to grant to the visa to Mr Ibrahim was of more assistance. In any event, the more important point is that there is no indication that the Tribunal considered that any contextual information, or anything about the context in which the information appeared, would be the reason, or part of the reason, for affirming the decision under review.
88 The third point is that the Tribunal's statements in its reasons to the effect that it preferred the "evidence" provided by Ms El-Etri to the evidence provided by Mr Ibrahim does not mean that the Tribunal relied on the two emails in their entirety, or more particularly, that it considered that all of the information in the two emails comprised information that would be the reason, or part of the reason, for affirming the decision under review. Mr Ibrahim's submission to the contrary is rejected.
89 Finally, Mr Ibrahim's contention that the emails included information which undermined Mr Ibrahim's claim that he was in a genuine relationship with Ms El-Etri, and that that information was not disclosed, is rejected. Mr Ibrahim's submissions in support of that contention appeared to proceed on the erroneous premise that the Tribunal was required, in terms, to disclose verbatim virtually every statement made in the two emails. It is sufficient to give but a few examples of the statements that Mr Ibrahim submitted should have been, but were not, disclosed to demonstrate why the submission has no merit.
90 Mr Ibrahim submitted that the Tribunal was required to, but did not, disclose the statement in the first email that "he did a little lie party in photos". That was despite the fact that the particulars that were provided by the Tribunal included that "you [Mr Ibrahim] and [Ms El-Etri] only met on 4-5 occasions and you used these occasions to take photographs of the two of you together". Similarly, Mr Ibrahim submitted that the Tribunal was required to disclose that the first email included the statement "all I love is my husband". That was despite the fact that the particulars provided by the Tribunal included that "[Ms El-Etri] remained in the relationship with her ex-husband". Mr Ibrahim also submitted that the Tribunal was required to disclose that the email included the statement "witch I was never married to him", despite the fact that the particulars provided by the Tribunal included that "you're [sic] [Mr Ibrahim's] marriage to her [Ms El-Etri] is a fake marriage".
91 Finally, there could be no doubt that the particulars of the information in the two emails that were provided by the Tribunal were sufficient to provide Mr Ibrahim with a real and meaningful opportunity to comment on or and respond to the relevant information. Mr Ibrahim took up that opportunity and provided a relatively detailed response at the hearing. It should also be noted that, prior to the hearing, Mr Ibrahim provided voluminous material to the Tribunal to respond to and refute the information that Ms El-Etri had provided to the Department which had been disclosed to him by the delegate. Mr Ibrahim's letter to the Tribunal dated 20 September 2016 reveals that he was well aware of the substance of the information that Ms El-Etri had provided to the Department: that his marriage with Ms El-Etri was contrived and that she only married him because he had promised to give her $30,000. Mr Ibrahim's response to that information was, amongst other things, to discredit Ms El-Etri and the information that she had provided.
92 The apparent suggestion that Mr Ibrahim was denied a real and meaningful opportunity to respond to and comment on the information provided by Ms El-Etri has no merit and is rejected.
93 In all the circumstances, there was and is no basis for concluding that the Tribunal did not comply with s 359AA or s 359A of the Act. Mr Ibrahim was given clear particulars of all the information which the Tribunal considered at the time would be the reason, or part of the reason, for affirming the decision under review. Mr Ibrahim has not demonstrated to the contrary. The primary judge was correct to find that the Tribunal did not contravene s 359AA, albeit that his Honour's reasons for so finding are far from clear or cogent. It follows that ground 1 of the appeal has no merit and is rejected.