SZRQA v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1675

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 September 2020. The Tribunal affirmed a decision of a delegate of the Minister not to grant a Partner (Temporary) (Class UK) visa (partner visa) under s 65 of the Migration Act 1958 (Cth) (Act). This Court has jurisdiction to determine this matter pursuant to s 476 of the Act.
2. The sole issue that arises for determination is whether the Tribunal failed to comply with the requirements of s 359A of the Act, in failing to provide clear particulars of information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. For the reasons that follow, I find the applicant has not demonstrated jurisdictional error.

1. The applicant is a citizen of Nepal. On 27 October 2016, the applicant applied for a partner visa based on his relationship with Mr Sachin Thapa (Mr Thapa) (sponsor), the visa sponsor (Court Book (CB) 1 to 75). Mr Thapa provided a statutory declaration in support of the partner visa application.
2. On 9 January 2017, the Department of Immigration and Border Protection (Department) sent to the applicant an invitation to comment on information for the partner visa application (CB 77 to 81). The invitation included an invitation for the applicant to provide further evidence of his relationship with Mr Thapa. By email dated 15 February 2017, the applicant's migration agent responded to the invitation (CB 82 to 180). On 6 June 2018, the applicant appointed a new migration agent, Mr Jia Li, of LMP Immigration (CB 184 to 185).

1. On 25 July 2018, the delegate refused the applicant's partner visa application on the basis that the applicant failed to satisfy cl 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 194 to 221). Clause 820.211(2)(d)(ii) required the applicant to satisfy each of the criterion 3001, 3003 and 3004 of Schedule 3 to the Regulations (Schedule 3 criteria), unless the Minister was satisfied there were compelling reasons not to apply the Schedule 3 criteria. The delegate found the applicant failed to meet Criterion 3001 of Schedule 3 to the Regulations, as the applicant's last substantive visa ceased to be valid for more than 28 days prior to lodging the partner visa application. As a result, the delegate was not required to assess the other two criteria. The delegate also found there were no compelling reasons not to apply the Schedule 3 criteria. Accordingly, the applicant failed to satisfy the Minister of any compelling reason to waive the Schedule 3 criteria, and cl 820.211(2)(d)(ii) was not met. Hence, the delegate refused the applicant's partner visa application.

1. On 14 August 2018, the applicant applied to the Tribunal for review of the delegate's decision dated 25 July 2018 refusing the applicant a partner visa (CB 224 to 229). On 17 July 2020, the Tribunal invited the applicant to attend a hearing (CB 237 to 246). The applicant accepted the invitation to attend the hearing.

1. On 18 August 2020, the applicant appeared before the Tribunal to give evidence and present arguments ([4] of the Tribunal's reasons). At that time, the applicant was assisted by his migration agent and an interpreter in the Nepalese language (CB 536 to 537). The first hearing was adjourned and on 21 August 2020, the Tribunal sent the applicant an invitation to comment on or respond to information letter (s 359A Invitation) (CB 549 to 552). The applicant's argument on judicial review is that the said s 359A Invitation fails to comply with the requirements of s 359A(1)(a) of the Act. Therefore, I will deal with the contents of the s 359A Invitation in detail when considering the ground for judicial review.
2. The hearing before the Tribunal was resumed on 3 September 2020, at which time the Tribunal also received evidence from the sponsor.

1. The Tribunal noted the applicant's migration history and history of making two protection visa applications, both of which failed at [9] and [10] of its reasons (omitting footnotes):
   1. The applicant...arrived in Australia in October 2008 as a dependent on subclass 572 Student visa. This Student visa was valid until May 2011. On 27 May 2011 the applicant lodged an application for a Protection visa, which was refused in December 2011. On 13 June 2012 the Refugee Review Tribunal (RRT) affirmed the Department's protection visa refusal decision. The applicant sought a judicial review of the RRT decision and on 22 March 2013 the Federal Court dismissed the appeal. The applicant then sought further judicial review, which was dealt with by the Full Federal Court on 23 September 2013, at which time the applicant's appeal was dismissed. In October 2013 the applicant lodged a request for Ministerial Intervention. He was advised on 9 May 2014 that this request would not be considered by the Minister.
   2. On 12 May 2014 the applicant lodged a second Protection visa application, which was deemed valid in the light of the Court's decisions in SZGIZ and SZRNJ. The Department reconsidered the Protection visa application and it was again refused in January 2015. The applicant sought a review of this decision at the Administrative Appeals Tribunal (differently constituted), with the result that the Protection visa refusal decision was affirmed on 16 August 2016. The applicant lodged a further request for Ministerial Intervention on 13 September 2016 and was advised on 14 September 2016 that it would not be considered.

The Tribunal noted the applicant was previously married and that marriage ended in divorce and that the applicant subsequently conceded the relationship was a contrived relationship for the purpose of securing a visa permitting him to travel to Australia ([12] of its reasons).

1. The Tribunal also noted that Mr Thapa, the sponsor, was granted a protection visa in January 2010 and became an Australian citizen by grant in September 2013 ([13] of its reasons). Mr Thapa claimed to be in a de facto relationship with one Mr Danlyo Biryukov (Mr Biryukov) from May 2010 to March 2013, who was sponsored by Mr Thapa for a partner visa application in November 2012, before Mr Thapa withdrew the sponsorship.
2. The Tribunal considered the various aspects of the relationship between the applicant and Mr Thapa ([18] to [33] of its reasons). The Tribunal noted that towards the end of the first hearing, the Tribunal summarised some provisional concerns it had about aspects of the applicant's and the sponsor's relationship. It noted there was not a lot of evidence before it that would indicate the applicant and the sponsor were more than just flatmates and invited the applicant to comment ([34] of its reasons). The Tribunal noted the applicant said he did not have further comments to make. The Tribunal also considered the evidence of two friends in support of the applicant's and the sponsor's relationship ([35] to [39] of its reasons).
3. Following the first hearing, the Tribunal wrote to the applicant pursuant to s 359A of the Act, putting to him the particulars of information available to the Tribunal that would be the reason or part of the reason for affirming the decision under review to refuse a partner visa ([40] of its reasons). The Tribunal noted that it had received a written response from the applicant on 2 September 2020 ([42] of its reasons).
4. In relation to the financial aspects of the applicant's and the sponsor's relationship, the Tribunal was not persuaded that the evidence before it supported the contention that the financial aspects of the applicant's and the sponsor's finances resembled that of a couple in a genuine and continuing de facto relationship ([65] to [80] of its reasons).
5. The Tribunal also found the evidence in relation to the nature of the applicant's and the sponsor's household did not support a contention that they had at the time of the application in October 2016, or at the time of the decision in September 2020, household arrangements which indicated a couple living together in a genuine and continuing de facto relationship ([81] to [89] of its reasons).
6. The Tribunal considered the social aspects of the applicant's and the sponsor's relationship and noted the evidence gave limited support to there being a genuine and continuing de facto relationship ([90] to [97] of its reasons).
7. The Tribunal did not place weight upon the length of time the applicant and the sponsor lived together at the same residential location (household). The Tribunal found the applicant misrepresented Mr Biryukov's connection to the household, and the evidence before it demonstrated nothing more than the fact that the applicant and the sponsor lived as flatmates who shared a household together with a third party for significant periods of time ([99] of its reasons).
8. The Tribunal also had significant concerns in relation to the reliability of the evidence given by the applicant in support of the claim that he was in a genuine and continuing de facto relationship with the sponsor. This included the applicant's contrived relationship with his spouse in his previous marriage as referred to at [9] of this judgment; inconsistent evidence provided in Tribunal reviews of previous visa applications; and inconsistencies that were inadequately explained in previous visa applications and the current partner visa application ([106] of its reasons).
9. The Tribunal placed weight on the applicant's history of entering a contrived relationship in pursuit of a migration pathway to Australia. The Tribunal was not satisfied the evidence supported the contention that the applicant used this as a means of departing Nepal due to fear for his safety but rather demonstrated the applicant's willingness to fabricate claims and enter contrived relationships if he perceived that to be advantageous. The Tribunal was also not persuaded by the applicant's explanation in relation to his attempts to minimise the duration of Mr Biryukov's stay at the household, and the ongoing financial transactions in his personal bank account with Mr Biryukov. The Tribunal considered the latter to further add doubt to the applicant's reliability as a witness and propensity to misrepresent circumstances to his advantage ([113] of its reasons).
10. At [114] of its reasons, the Tribunal concluded that the applicant and the sponsor were in a contrived relationship for the purposes of assisting the applicant to achieve permanent residency in Australia.

1. The applicant was represented at the hearing before me by Mr David Godwin of Counsel (Mr Godwin). The Minister was represented by Mr Douglas McDonald-Norman of Counsel (Mr McDonald-Norman). The evidence (which was read without objection) from the Minister comprised of the following three affidavits, which annexed various documents that had been omitted from the Court Book:

(a) The affidavit of Ms Annabelle Victoria Jean Wilford (Ms Wilford) sworn on 11 March 2025, which annexed the applicant's statutory declaration dated 1 September 2020.

(b) The affidavit of Ms Wilford sworn on 30 May 2025 (Affidavit dated 30 May 2025), which annexed a copy of the Refuge Review Tribunal's (RRT) first decision dated 12 June 2012 in case number 1200145 in relation to the first protection visa application made by the applicant (2012 RRT Decision).

(c) The affidavit of Ms Wilford sworn on 4 April 2025 (Affidavit dated 4 April 2025), which annexed a copy of the Administrative Appeals Tribunal's (AAT) decision dated 15 August 2016 in case number 1502512 in relation to the second protection visa application made by the applicant (2016 AAT Decision).

1. The Minister also relied on the Court Book, which was marked "Exhibit 1".
2. The applicant relied on Mr Godwin's written submissions accepted for filing on 25 February 2025 and 10 June 2025 and the Minister relied on Mr McDonald-Norman's written submissions accepted for filing on 11 March 2025 and 30 May 2025. I also had the benefit of the oral submissions from both Mr Godwin and Mr McDonald-Norman.

1. The applicant's amended application, which was accepted for filing on 20 August 2024, deleted the previous four grounds for judicial review and replaced the grounds with the following single ground:

The Tribunal failed to comply with s 359A(1)(a) of the Migration Act

Particulars

In its written s359A invitation to the applicant dated 18 (sic) August 2020 the Tribunal has given insufficiently clear particulars of the inconsistent evidence given in previous Tribunal reviews and inadequately explained inconsistencies in evidence which it considered would be the reason for affirming the delegate's decision.

1. Section 359A of the Act, at the time of the Tribunal decision, provided as follows:

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

1. The applicant's complaint is that the Tribunal did not comply with the obligations under s 359A(1)(a) of the Act, to provide "clear particulars" of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review. To understand the applicant's argument, it is useful to set out the relevant parts of the Tribunal's s 359A Invitation, which was sent to the applicant in order to comply with the provisions of s 359A of the Act. For convenience to cross-reference in my judgment, I have added numbers to the paragraphs in the s 359A Invitation below and emphasised in bold the areas of concern raised by the applicant.

Section 359A Invitation

1. The s 359A Invitation was relevantly in the following terms (emphasis added):

[1] The delegate from the immigration department who considered your initial application in May 2011 for a Protection visa refused the application on the ground that you were not a credible witness and that your claims had been fabricated to provide a basis for your Protection visa application in order to extend your stay in Australia for reasons unrelated to the Refugees Convention.

[2] That decision was affirmed by the Refuge Review Tribunal (RRT) in June 2012. [the footnote then referenced that decision as Refugee Review Tribunal Decision Record [1200145] 12 June 2012]. Information in that RRT decision makes it apparent you first entered Australia in 2008 as the spouse of a woman who was granted a student visa. You conceded that you were in a false marriage because this provided you a way to get a visa allowing you to remain in Australia.

[3] The Member of the RRT who undertook the initial review of the decision to refuse your Protection visa application found, on the basis of inadequately explained inconsistencies in evidence provided by you in support of your protection claims and that you were not a witness of truth and that you had made false claims. The RRT decision was subsequently upheld by the Federal Circuit Court and Federal Court.

[4] In relation to a second application for a Protection visa, which you lodged in May 2014 on complementary grounds, a delegate from the immigration department refused that application. In relation to that second protection visa application, you claimed that you were gay and in a sexual and emotional relationship with Mr Sachin Thapa, your de facto partner.

[5] This decision was affirmed by the Tribunal in August 2016 (differently constituted). [the footnote then referenced that decision as Administrative Appeals Tribunal Decision Record [1502512] 15 August 2016]. The member who undertook that review noted a range of inconsistencies in the evidence provided at hearing by you and Mr Thapa, including with respect to activities you claimed to have undertaken over the weekend prior to your appearance before that Tribunal and in relation to information Mr Thapa had shared with you about the nature of his connection to Mr Biryukov.

[6] The member noted that Mr Thapa had provided evidence to the RRT in other cases of being in gay relationships with men seeking visas allowing them to remain in Australia, including in relation to Mr Biryukov, who Mr Thapa had for a period sponsored for a Partner visa. The Member was not satisfied any weight could be placed on the evidence provided by Mr Thapa as to the claim the two of you are in a de facto relationship. The member was not satisfied that the evidence before him demonstrated that you and Mr Thapa were anything more than flatmates.

[7] This information is relevant because of the findings made that you are not a witness of truth and that information provided by both you and Mr Thapa about the nature of your relationship is not reliable. This information is also relevant because you conceded during your appearance before the RRT that you have previously falsely represented yourself as been in a marital relationship for the purpose of gaining a visa allowing you to travel to and remain in Australia. This information raises concern as to whether evidence you and Mr Thapa provided in support of your Partner visa application is reliable.

[8] If the Tribunal is not satisfied that you are in a genuine and continuing de facto relationship with Mr Thapa it would provide the reason, or part of the reason to affirm the decision under review.

Applicant's complaint as to the s 359A Invitation

1. Mr Godwin raised two complaints with the s 359A Invitation.
2. First, in relation to [3] of the s 359A Invitation (as set out in [26] above), Mr Godwin contended that in order to comply with s 359A(1)(a) of the Act, the Tribunal was required to identify what the "inadequately explained inconsistencies" were, so to enable the applicant to provide further information he wanted the Tribunal to take into account in relation to those inconsistencies. Mr Godwin argued that the applicant's only option was to review the 2012 RRT Decision mentioned in [3] of the s 359A Invitation. For convenience, I will refer to this paragraph as the "RRT paragraph".
3. Second, in relation to [5] of the s 359A Invitation (as set out in [26] above), Mr Godwin also contended that the Tribunal failed to set out all the particulars as to the inconsistencies. Mr Godwin submitted that by using the word "including" in [5] of the s 359A Invitation, the Tribunal was referencing other inconsistencies, which the s 359A Invitation did not provide clear particulars. For convenience I will refer to this as the "AAT paragraph".
4. In relation to the AAT paragraph, Mr Godwin also pointed to the 2016 AAT Decision and submitted that the Tribunal in the 2016 AAT Decision found the following additional three inconsistencies which were not mentioned in the s 359A Invitation and which ought to have been particularised:

(a) First, an inconsistency between the applicant's original protection visa application and his later statement, being the failure in the original protection visa application to make a claim in relation to two incidents, one being a fight with the Maoists after the applicant allegedly went to assist a businessman, and the other being that the applicant was allegedly abducted from school ([30] first dot point of 2016 AAT Decision, Affidavit dated 4 April 2025).

(b) Second, an inconsistency as to the timing when the applicant allegedly became involved in politics ([30] second dot point of 2016 AAT Decision, Affidavit dated 4 April 2025).

(c) Third, an inconsistency as to the applicant's level of involvement in politics and as to whether he held a position in the Communist Party of Nepal (United Marxist Leninist) ([30] third dot point of 2016 AAT Decision, Affidavit dated 4 April 2025).

1. Mr Godwin submitted that part of the Tribunal's reasons, at [106], in relation to the partner visa under review, turned on the "inconsistent evidence in previous Tribunal reviews" before the RRT in 2012 and the AAT in 2016 and the "inadequately explained inconsistencies in evidence provided by the applicant in support of" previous visa applications. Even though Mr Godwin referred to [106] of the Tribunal's reasons, his primary position was that the Tribunal's reasons are not the starting point to determine what information the s 359A Invitation sought to identify and that the terms of the s 359A Invitation need to be considered on its face (applicant's post hearing submissions in reply filed 10 June 2025 at [1]).
2. I will deal with each of the two complaints separately, but first it is useful to identify the relevant legal principles in relation to s 359A of the Act.

1. In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, his Honour Flick J at [19] and [23] stated that:

[19] In the present proceeding it is considered that the details not disclosed to the present appellant concerning the person who wrote the other letter, the Union Council from which it had come, and its date constituted:

• • "information" for the purposes of s 424A;

• • "clear particulars" of such information had not been communicated orally for the purposes of s 424AA(a).

Prior versions of s 424A, it may be noted, referred merely to "particulars of any information" being communicated to an applicant. The requirement that "clear particulars" be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). But neither the second reading speech to the Migration Amendment (Review Provisions) Bill 2006 (Cth) nor the explanatory memorandum in respect to that Bill throw any light on the transition from the requirement that "particulars" be provided to the requirement that "clear particulars" be provided. Despite this, the change in the language employed by the legislature and the effect of this on the character of the particulars that are to be provided cannot be ignored. And, given the inquisitorial functions entrusted to the tribunal, it is not a phrase to be construed necessarily by reference to the purpose that "particulars" may serve in (for example) a statement of claim filed in this court. What falls within the phrase as employed in ss 424A and 424AA is, however, not without some ambiguity. It is a phrase also employed in ss 359A and 359AA of the 1958 Act.

...

[23] There may be circumstances in which the requirement to "give" information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such "information" is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the "information" in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But "information" for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case**.** In some cases it may be necessary to identify the "source" from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to "comment ... or respond ..." is meaningful. In some cases the disclosure of the "substance" of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases "clear particulars" may require more.

1. His Honour also observed at [27] the following:

A meaningful opportunity to "comment ... or respond" in the present proceeding required the disclosure of information that was withheld. An explanation may have been forthcoming if the applicant had been told more about the other letter that the tribunal member had come across. The reservations of the tribunal member, especially given his other concerns as to the credibility of the now appellant, may not have been misplaced. No further "comment ... or respon[se]" may in fact have been forthcoming. But the opportunity to "comment ... or respond" is the very procedural safeguard which enables an applicant to at least have an opportunity to address those reservations. An opportunity to "comment ... or respond" to the other letter is only a meaningful opportunity if there has been disclosure of such particulars as enables an applicant to put that other letter into context. Letters in the same terms, but dated years apart, may be more difficult for an applicant to explain (for example) than letters written relatively contemporaneously in much the same circumstances.

1. Section 359A of the Act sets out several requirements. The first requirement is set out in s 359A(1)(a) which is to provide clear particulars of the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The second requirement set out in s 359A(1)(b) is to explain, as far as reasonably practicable, that the applicant understands why any such information is relevant to the review and the consequences of the Tribunal relying on any such information. In SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 232 FCR 282; [2009] FCA 486 (SZMTJ), his Honour Flick J emphasised these two linked requirements as to the extent of the particulars that are provided and the extent of the explanation, such that fulsome explanation may dispense with the need for detailed particulars, and equally providing detailed particulars may mean that the explanation may not need to be so detailed. At [52], his Honour said:

Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the "particulars of any information" provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

1. I also note that s 359A(1)(a) expressly provided that the information to the applicant is to be given "in the way that the [Tribunal] considers appropriate in the circumstances". As her Honour Given J stated in Manchandia v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1296 at [44]:

The discretion in s 359A(1) extends to the Tribunal determining for itself the manner in which it gives the information as being that which it "considers appropriate in the circumstances". It can be inferred that the Tribunal did not, in the particular circumstances of this case, consider it appropriate (or necessary) to provide the applicants with a full copy of PIC 4005. There is no error in the election not to do so...

1. Further, as said in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [71] (per Tracey and Foster JJ), the policy and purpose of s 424A, an equivalent provision to s 359A, is to put the visa applicant on "fair notice" in writing of critical matters before the Tribunal. It is also noted that the provision of clear particulars requires that the information must be provided with "sufficient specificity": SZMTJ at [45].

Analysis of the RRT paragraph and AAT paragraph

1. The purpose of s 359A of the Act is to put the applicant on fair notice in writing of critical matters of concern to the Tribunal and ensure that the applicant understands why the information is relevant to the review and the consequences of it being relied upon by the Tribunal and invite the applicant to comment or respond. To that end to ascertain whether the s 359A Invitation in this case met, what is essentially requirements of procedural fairness, the RRT paragraph and the AAT paragraph need to be dealt with together and read in the context of what decision was under review and in the context of other paragraphs of the s 359A Invitation.
2. The context in which the s 359A Invitation was sent was the Tribunal reviewing the decision of the delegate and considering, amongst other issues, whether the applicant was at the time of the application and at the time of the Tribunal's decision in a genuine relationship with his sponsor, Mr Thapa ([5] of the Tribunal's reasons).
3. Relevantly the s 359A Invitation at [7] (set out at [26] of this judgment) makes clear why the Tribunal considered the information was relevant, and expressly states "this information is relevant because" of findings made that the applicant was not a witness of truth in the 2012 RRT Decision and the 2016 AAT Decision as follows:

(a) First, "findings made that you [the applicant] are not a witness of truth"; and

(b) Second, "findings made...that information provided by both you [the applicant] and Mr Thapa about the nature of your relationship is not reliable".

1. One then needs to go to the earlier paragraphs of the s 359A Invitation, [1] to [6] (set out at [26] of this judgment), to ascertain whether the Tribunal identified the information with sufficient specificity, in light of the fact that the Tribunal at [7] of the s 359A Invitation had stated why the "information" was relevant.
2. I find that fairly read, the s 359A Invitation disclosed the following clear particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, being the findings made in the 2012 RRT Decision and the 2016 AAT Decision that the applicant was not a witness of truth:

(a) That the delegate who considered the applicant's first application for a protection visa found that the applicant was not a credible witness and that he fabricated claims in pursuit of a migration pathway to Australia: [1] of the s 359A Invitation.

(b) Information in the 2012 RRT Decision set out that the applicant had conceded that he entered into a false marriage because this provided him with a way to obtain a visa to allow him to remain in Australia: [2] of the s 359A Invitation.

(c) The member of the RRT in relation to the applicant's first protection visa "found on the basis of inadequately explained inconsistencies in evidence" the applicant had provided in support of his protection claims, that the applicant was not a witness of truth and that he had made false claims: [3] of the s 359A Invitation. This is the RRT paragraph the applicant challenges as not disclosing what the inadequately explained inconsistencies were so to give the applicant a fair opportunity to respond. I reject the premise of the applicant's argument, because the RRT paragraph ([3] of the s 359A Invitation), properly read, communicated that the RRT found the applicant was not a credible witness, citing the basis for the RRT's findings as being inconsistencies that were insufficiently explained. This information is specific enough given that the Tribunal considered the finding by the RRT, that the applicant was "not a witness of truth", to be the reason or part of the reason for affirming the decision under review, rather than the unexplained inconsistencies ([7] of the s 359A Invitation).

(d) That the applicant made a second application for a protection visa on complementary grounds and in that application claimed to be in a gay relationship with Mr Thapa: [4] of the s 359A Invitation.

(e) The Tribunal in the AAT Decision found that evidence given by the applicant and Mr Thapa contained a number of inconsistencies including activities claimed to have occurred over the weekend prior to the hearing and in relation to information Mr Thapa had shared with the applicant as to the nature of his connection with Mr Biryukov: [5] of the s 359A Invitation. At [7] of the s 359A Invitation, the Tribunal says why that information would be the reason or part of the reason for finding that the applicant and Mr Thapa were not in a genuine relationship, being that this "information is relevant because of the findings...that information provided by both you and Mr Thapa about the nature of your relationship is not reliable" (emphasis added).

1. I also reject the applicant's reading of the AAT paragraph ([5] of the s 359A Invitation), being that it refers to inconsistencies in the 2016 AAT Decision as to the applicant's own evidence as to his protection visa claims which are identified at [30] of this judgment. This is because fairly read, what [5] of the s 359A Invitation is saying, is that the Tribunal member in August 2016 "who undertook that review noted a range of inconsistencies in the evidence provided at the hearing by you [the applicant] and Mr Thapa". As the emphasised words disclose, the inconsistencies which were being referred to were only those inconsistencies in evidence found by the previous Tribunal as to the evidence of the applicant and Mr Thapa. I note that those inconsistencies are referred to at [35] of the 2016 AAT Decision. At the hearing, Mr Godwin for the applicant accepted that there was no complaint that the s 359A Invitation failed to provide particulars of those inconsistencies as stated at [35] of the 2016 AAT Decision. Further, my reading of the AAT paragraph is reinforced by the Tribunal's reference at [7] of the s 359A Invitation, that this information is relevant because it would be a reason to find that both the applicant's and Mr Thapa's evidence about the nature of their relationship was not reliable.
2. Accordingly, I find the ground for judicial review fails.

1. At the hearing, I raised with Mr Godwin whether the applicant was still with Mr Thapa, as this may be relevant to whether, if I had found jurisdictional error, I would in the exercise of my discretion issue the constitutional writs. This is because if the grant of relief would be futile, because no useful result would ensue by remitting this matter to the Tribunal, then in the exercise of discretion, constitutional writs would ordinarily be refused. Mr Godwin said at the hearing that "we have instructions which mean that we're going to have to put on some evidence about the current status of the relationship...what we do know is that there is enough there to make it concerning". Accordingly, I made an order on 9 April 2025 permitting the applicant to file and serve any further evidence by 5pm on 19 May 2025. In the applicant's further submissions filed on 10 June 2025, they submitted as follows:

The applicant is not seeking to file any further evidence on the question of the Court's discretion to deny relief. Whether the applicant meets the criteria for the visa he applied for is a matter that the Tribunal will assess on remittal. It is submitted that this factual assessment is a question for the Tribunal and not the Court.

1. I reject the applicant's contention that any such evidence that was relevant to a futility argument is not a question for this Court for the following reasons:

(a) First, even if jurisdictional error is found by this Court, constitutional writs are not issued as a matter of right, but rather at the discretion of the Court and will not be issued if it is futile to issue the writs: Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 62 ALD 285 (at [58] per Gaudron and Gummow JJ, at [104] per McHugh J, at [131] per Kirby J, at [211] per Callinan J). Therefore, if the legal representatives are aware of facts that go to futility, then as officers of the Court this should be drawn to the attention of the Court.

(b) Second, Mr Howard Murdoch, in completing the Lawyer's Certification on the amended application accepted for filing on 20 August 2024, certified that there were reasonable grounds for believing that this migration litigation has a reasonable prospect of success. This obligation carries with it that a solicitor would not certify that there are reasonable prospects of success where relief may be refused on futility grounds.

1. In any case, I have determined that no jurisdictional error is disclosed.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.