Opoku v Minister for Immigration, Citizenship and Multicultural Affairs

The case of Opoku v Minister for Immigration, Citizenship and Multicultural Affairs involved Joseph Opoku, a Ghanaian citizen, who sought a review of a decision made by the Administrative Appeals Tribunal (the Tribunal). The decision under review was a refusal to grant him a Permanent Partner Visa (Subclass 801) by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant, who had been granted a Temporary Partner Visa (Subclass 820) in 2013, alleged that his relationship with his Australian citizen sponsor had ended due to family violence. The Tribunal upheld the delegate's decision, finding that the applicant had not made a compliant claim of family violence as required by regulation 1.24(b) of the Migration Regulations 1994. This finding was dispositive, leading to the refusal of the visa application.

The legal issues before the court were whether the Tribunal had fallen into jurisdictional error by failing to reconvene for the purpose of canvassing live issues, and whether the failure of the Secretary to provide the Tribunal with relevant documentation constituted jurisdictional error. Additionally, the court considered whether the Tribunal's actions breached the procedural fairness requirements under s. 360 of the Migration Act 1958 (Cth).

The court found that the Tribunal had indeed fallen into jurisdictional error. The Tribunal member did not read documentation required under reg. 124(b) of Schedule 1 to the Migration Regulations 1994 prior to or during the course of the hearing. This documentation, which included a statutory declaration from a social worker named Halakhe Ganyu, was not provided to the Tribunal by the Secretary as required by s 352(4) of the Act. Furthermore, the Tribunal made erroneous findings by failing to appreciate that the nature of the interaction between the applicant and Ganyu was a live issue that required further clarification. The court held that the Tribunal's failure to reconvene and seek further clarification from the applicant about a live issue constituted both jurisdictional error and a breach of procedural fairness.

The decision of the Tribunal was quashed, and the matter was remitted to the Tribunal for rehearing, with the requirement that it be constituted by a different member than the one who handed down the decision on 15 April 2016. The court also ordered the Minister to pay the applicant's costs of and incidental to the application for review.