Yeboah v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1258

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Yeboah v Minister for Immigration and Citizenship [2025] FedCFamC2G 1258   

File number(s): SYG 1271 of 2021
Judgment of: JUDGE ZIPSER
Date of judgment: 7 August 2025
Catchwords:

MIGRATION - judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – Tribunal refused to permit applicant to give oral evidence at hearing – whether breach of procedural obligation – whether Tribunal failed to provide applicant with meaningful opportunity to present case - whether Tribunal’s procedural decision to refuse to permit applicant to give oral evidence was legally unreasonable – whether reasons provided by Tribunal for refusing to permit applicant to give oral evidence were complete explanation for exercise of power or discretion

MIGRATION – judicial review – whether Tribunal ought to have adjourned hearing or given applicants additional time after hearing to obtain and provide further evidence to Tribunal – whether Tribunal’s procedural decision not to adjourn hearing was legally unreasonable – whether Tribunal’s procedural decision not to give applicants additional time to obtain evidence was legally unreasonable

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 18B

Migration Act 1958 (Cth) ss 65, 360, 476

Migration Regulations 1994 (Cth) regs 1.23, 1.24, 1.25, cls 801.221, 801.321 of Sch 2,

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 9.03
Cases cited:

AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317

M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; 155 FCR 333

Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; 298 FCR 277

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Division: Division 2 General Federal Law
Number of paragraphs: 97
Date of hearing: 14 July 2025
Place: Parramatta
Solicitor for the Applicants: Mr Victor Lo (Migration VL)
Solicitor for the Respondents: Mr Liam Dennis (Mills Oakley)

ORDERS

SYG 1271 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ISAAC KWEKU YEBOAH

First Applicant

ABIGAIL KRUWAH ADWOA YEBOAH

Second Applicant

GETRUDE ABENA BOAMPONG YEBOAH

Third Applicant

EUGENE KENNETH YEBOAH
Fourth Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE ZIPSER

DATE OF ORDER:

7 AUGUST 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.The application is dismissed.

3.The first, third and fourth applicants pay the first respondent’s costs in the sum of $6,100.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit…

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Yeboah v Minister for Immigration and Citizenship [2025] FedCFamC2G 1258
Case
[2025] FedCFamC2G 1258
Decision Date

CaseChat Overview and Summary

In the case of Yeboah v Minister for Immigration and Citizenship, the applicants, nationals of Ghana, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a delegate’s refusal to grant them subclass 801 visas. The applicants argued that the Tribunal had failed to provide them with a meaningful opportunity to present their case and had breached procedural obligations in various respects. The court was required to determine whether the Tribunal had erred in its procedural handling of the case, particularly in refusing to permit the principal applicant to give oral evidence and in not adjourning the hearing or providing additional time to obtain further evidence.

The court considered whether the Tribunal’s refusal to permit the principal applicant to give oral evidence constituted a breach of procedural fairness and whether the reasons provided by the Tribunal for this decision were legally sound. Additionally, the court assessed whether the Tribunal’s decision not to adjourn the hearing or provide extra time to obtain evidence was legally unreasonable. The court examined the procedural fairness obligations under the Administrative Appeals Tribunal Act 1975 (Cth) and relevant case law to evaluate the Tribunal's actions.

The court concluded that the Tribunal had not breached procedural fairness in refusing to permit the principal applicant to give oral evidence. The reasons provided by the Tribunal were deemed sufficient and legally sound. The court found that the Tribunal's procedural decision not to adjourn the hearing or provide additional time to obtain evidence was not legally unreasonable, as the applicants had ample opportunity to present their case within the timeframe provided. The application for judicial review was therefore dismissed.

In summary, the court held that the Tribunal's procedural decisions were within its lawful authority and did not constitute a breach of procedural fairness. The applicants' arguments regarding the Tribunal's handling of the case were found to be without merit, leading to the dismissal of the judicial review application.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the application is dismissed.FACTUAL BACKGROUND In February 2014, the applicants, nationals of Ghana, made combined applications for subclass 820 (temporary) Partner visas and subclass 801 (residence) Partner visas on the basis of a spousal relationship between the first applicant (Applicant) and an Australian citizen (Sponsor). The second, third and fourth applicants are the Applicant’s children - born in 2003, 1998 and 1994 respectively. On 10 October 2014, the applicants were granted subclass 820 (temporary) visas. On 15 May 2019, a delegate of the first respondent refused to grant the applicants subclass 801 (residence) visas. The delegate was not satisfied that the Applicant, at the time of the delegate’s decision, continued to be in a genuine and continuing relationship with the Sponsor as required by cl 801.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). It followed that, in relation to the secondary criteria applicable to members of the family unit, the second, third and fourth applicants did not meet cl 801.321. On 29 May 2019, the applicants applied to the Tribunal for review of the delegate’s decision. On 9 April 2021, the Tribunal invited the applicants to attend a hearing on 31 May 2021. On 31 May 2021, the applicants attended a hearing before the Tribunal. On 16 June 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants subclass 801 visas.LEGISLATION As explained below, the issue for the Tribunal was whether the Applicant had suffered family violence committed by the Sponsor which satisfied the provisions in Division 1.5 of the Regulations. Regulations 1.23, 1.24 and 1.25 relevantly provided:1.23 When is a person taken to have suffered or committed family violence?…(9) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has experienced family violence; and(b)the alleged victim is:(i) a spouse or de facto partner of the alleged perpetrator; … and (c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:(i) the alleged victim has experienced relevant family violence; and(ii) the alleged perpetrator committed that relevant family violence. 1.24 EvidenceThe evidence mentioned in paragraph 1.23(9)(c) is:(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph. 1.25 Statutory declaration by alleged victim etc(1)A statutory declaration under this regulation must be made by the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator.(2) A statutory declaration under this regulation that is made by a person mentioned in subregulation (1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:(a) set out the allegation; and(b) name the person alleged to have committed the relevant family violence; and …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

One type of evidence in Schedule 1 of the Instrument was a “statutory declaration made by a registered psychologist … who has treated the alleged victim while performing the duties of a psychologist”.TRIBUNAL’S DECISION The Tribunal at [11] and [18] recorded that on 13 May 2021 the Tribunal received correspondence from the Sponsor withdrawing her sponsorship and stating that she no longer lived with the Applicant and had relocated to Perth in November 2019. The Tribunal at [15] recorded that, after inviting the applicants to comment on the withdrawal of sponsorship by the Sponsor, on 31 May 2021 the Tribunal received a statutory declaration from the Applicant claiming, for the first time, that he had suffered family violence perpetrated by the Sponsor. The Tribunal at [16] recorded the Applicant’s acknowledgement to the Tribunal that ‘the relationship with ... the sponsor has ceased’. The Tribunal at [20] found that “the [A]pplicant and the sponsor were in a partner relationship and that this relationship has ceased”. As recorded by the Tribunal at [3], cl 801.221(6) in Schedule 2 to the Regulations had the effect that, although the relationship between the Applicant and Sponsor had ceased, the Applicant could satisfy the criteria for the visa if the applicant “has suffered family violence committed by the sponsoring partner”: see cl 801.221(6)(c)(i). As a result, the Tribunal at [21] stated that “the issue on the evidence in this case is whether the [A]pplicant has suffered family violence committed by the sponsor, within the meaning of the Regulations”. The Tribunal at [26] noted that the Applicant was seeking to rely on evidence referred to in reg 1.24, namely a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister in the Instrument. The Tribunal at [27]-[38] considered the statutory declaration provided by the Applicant. The Tribunal at [38] found that “the statutory declaration meets the requirements of reg 1.25”. The Tribunal at [39]-[55] considered and recorded its discussion with the Applicant as to, whether he had provided to the Tribunal evidence which satisfied or met reg 1.24(b). The Tribunal at [39] recorded that it “told the [A]pplicant it was concerned there appeared to be no further evidence provided matching that specified in” the Instrument. The Tribunal at [55], after considering various matters, concluded that “the evidence submitted in support of the applicants’ claim for family violence does not meet the statutory requirements specified in” the Instrument. It followed, as stated by the Tribunal at [56] and [57], that “ the evidence presented does not meet the requirements of reg 1.24”, “as such, a non-judicially determined claim of family violence has not been made out under reg 1.23”, and therefore the Applicant did not meet the requirements for the grant of a subclass 801 visa. It also followed, as stated by the Tribunal at [59], that “the secondary applicants do not meet the requirements of cl 801.321”.PROCEEDINGS IN THIS COURTJudicial review application and steps up to hearing on 14 July 2025

Ratio Decidendi

Legal Principle Established

Mr Dennis explained why the New Ground was without merit.CONSIDERATIONFactual background to ground 1 in Application and New Ground For reasons explained in paragraphs 82 to 84 below, I consider it appropriate for the Court to consider the New Ground on its merits. The following paragraphs set out communications between the Tribunal and applicants’ representatives prior to the hearing in the Tribunal on 31 May 2021 which are relevant to ground 1 in the Application and the New Ground. By letter dated 9 April 2021 sent to the applicants’ representative, the Tribunal invited the applicants to attend a hearing on 31 May 2021. The letter stated in part: (CB 316-317)Please see the ‘COVID-19 Special Measure Practice Direction – Migration and Refugee Division’ (available at for further information and directions about the current procedures for the AAT, in particular paragraphs 6.7 to 6.13.Witness statements6.7 You must lodge with the AAT a signed and dated statement from:(a) the applicant; and(b) any person we have told you the Tribunal may contact to obtain oral evidence (a witness); setting out the evidence the applicant and the witness will give at the hearing.6.8 If you are unable to obtain a signed statement from a witness, you must lodge with the AAT an outline of the evidence the witness will give and how it is relevant to your case.6.9 A witness statement or outline of evidence must be lodged with the AAT as early as possible before the hearing. The letter added under the heading “Things to do before the hearing”:Please provide all documents you intend to rely on to support your case by 24 May 2021. The COVID-19 Special Measure Practice Direction – Migration and Refugee Division” (Practice Direction) was issued under s 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Section 18B(1) stated:(1) The President may give written directions in relation to any or all of the following:(a) the operations of the Tribunal; (b) the procedure of the Tribunal;(c) the conduct of reviews by the Tribunal;(d) the arrangement of the business of the Tribunal;(e) the places at which the Tribunal may sit. On 18 April 2021, the applicants’ representative emailed the Tribunal a document titled “Response to hearing invitation” (CB 327-329). In response to information sought in the document as to whether the second, third and fourth applicants would or would not “participate in the hearing”, the completed document recorded that each of the second, third and fourth applicants would participate in the hearing. On 27 April 2021, the Tribunal sent an email to the applicants’ representative which stated in part: (CB 330)The Tribunal has received the hearing response for this matter which states that the secondary applicants will attend the hearing.The Member has advised that the secondary applicants will not be required to attend to give evidence. Their evidence can be provided in the form of a statutory declaration if the Primary Visa Applicant thinks they can contribute relevantly.