Federal Court. Delegate refused second stage partner visa (subclass 100) on the basis of end of relationship. On review at AAT, Appellant made family violence claim. At what point did the requirement to prove the existence of a genuine relationship end? Secretary: issued two s 375A certificates which covered documents that were capable of proving that relationship was genuine; revoked 1 of those certificates; and issued a s 376 certificate. In circumstances where Minister defended a denial of procedural fairness by successfully claiming at FCCA public interest immunity in respect of a document covered by an undisclosed certificate, is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from Minister to Appellant?
The questions to the Federal Court (FCA) were as follows:
Question 1: In SZMTA, High Court had held that the consequences of the Secretary notifying the Tribunal that s 438 applied in relation to a document or information was sufficient for the common law to imply an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the review applicant. Does SZMTA apply to s 375A certificates?
Question 2: If there is an obligation of procedural fairness to disclose the fact of notification under s 375A or s 376, is that obligation excluded by s 357A?
Question 3: Did the Tribunal trivialise the s 375A certificate and its effect by referring to it as “just a piece of paper” or by saying that the Appellant could choose to make submissions about the validity of the certificate now, or write to the Tribunal later “or you can just forget about it”?
Question 4: Did the Tribunal breach its implied obligation of procedural fairness by not disclosing to the Appellant that the s 375A certificate was later revoked by the Minister before the Tribunal's decision?
Question 5: If the preconditions in s 375A(1) are not met in relation to a document or information, does that section have application in relation to the document or information?
Question 6: Can it be said that the Tribunal's lack of consideration of the documents covered by a s 375 certificate, which by the way were capable of proving that relationship between the Appellant and his sponsor was genuine, was not material in that there were other documents before the Tribunal which already supported the genuineness of the relationship? In other words, does the materiality test involve a binary or a balancing exercise?
Question 7: Did procedural fairness oblige the Tribunal to fully disclose the s 376 certificate to the Appellant so that he had an opportunity to submit that the Tribunal should exercise the discretion under s 376(3)(b) to disclose to the Appellant the documents covered by that certificate?
Question 8: Is it consistent with the Minister's obligations for the Minister to defend a demonstrable denial of procedural fairness by successfully claiming at the Federal Circuit Court (this aspect not being challenged on appeal) public interest immunity in respect of a document covered by an undisclosed certificate and then submit that, in those circumstances, the materiality of the breach cannot be demonstrated by the Appellant?
Question 9: If the answer to Question 8 is "no", then in those circumstances is the onus to prove that, had the Tribunal not failed to disclose the s 376 certificate, it could have arrived at a different decision, shifted from the Minister to the Appellant?
Question 10: In circumstances where it was accepted at the Subclass 309 visa stage that the relationship between the Appellant and his sponsor was a genuine relationship, and the delegate’s decision was based on the breakdown of that relationship, not on any finding that there had never been a genuine relationship, was the Tribunal obliged to somehow put the Appellant on notice that the genuineness of his relationship with the sponsor was nonetheless an issue on the review?
Question 11: At what point in the assessment of a 2-stage partner visa application (i.e. subclasses 309/100 or 820/801) does the requirement for the existence of a genuine relationship end?
The FCA answered those questions as follows:
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