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

1. On 9 July 2021, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 16 June 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants Partner (Residence) (subclass 801) visas under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. 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.
2. On 10 October 2014, the applicants were granted subclass 820 (temporary) visas.
3. 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.
4. On 29 May 2019, the applicants applied to the Tribunal for review of the delegate's decision.
5. On 9 April 2021, the Tribunal invited the applicants to attend a hearing on 31 May 2021.
6. On 31 May 2021, the applicants attended a hearing before the Tribunal.
7. On 16 June 2021, the Tribunal made a decision affirming the delegate's decision not to grant the applicants subclass 801 visas.

1. 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.

The 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 ...

1. The relevant instrument referred to in reg 1.24(b) was IMMI 12/116 titled "Evidentiary Requirements" (Instrument). The Instrument stated:

I, CHRIS BOWEN, Minister for Immigration and Citizenship, acting under paragraph 1.24(b) of the Migration Regulations 1994 ('the Regulations'):

1. SPECIFY for the purpose of paragraph 1.24(b) the types of evidence as acceptable evidence at Schedule 1.
2. SPECIFY that a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of paragraph 1.24(b).

1. 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".

1. 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.
2. 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'.
3. The Tribunal at [20] found that "the [A]pplicant and the sponsor were in a partner relationship and that this relationship has ceased".
4. 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".
5. 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.
6. 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".
7. 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.
8. 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.
9. It also followed, as stated by the Tribunal at [59], that "the secondary applicants do not meet the requirements of cl 801.321".

Judicial review application and steps up to hearing on 14 July 2025

1. On 9 July 2021, the applicants filed in this Court an application for judicial review of the Tribunal's decision (Application). The Application, prepared by a lawyer (2021 Lawyer), contained two grounds. As explained below, at the hearing in this Court on 14 July 2025 the applicants' solicitor withdrew ground 2. Ground 1 stated (as written):
   1. The second respondent (Administrative Appeals Tribunal) failed to comply with s 360 of the Migration Act 1958 (Cth). Alternatively, one of its findings was legally unreasonable and/or not supported by the evidence. In the further alternative, it constructively failed to exercise its jurisdiction. However characterised, that error was jurisdictional.

Particulars

a) The first applicant was the primary applicant to an application for a Class BS (partner), subclass 801 visa.

b) The second, third and fourth applicants were secondary applicants to that partner visa application.

c) All of the applicants made a combined application to the Tribunal, seeking the review of a decision of the delegate of the first respondent to refuse to grant them partner visas.

d) The Tribunal was obliged under s 360(1) to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review".

e) The primary question before the Tribunal was whether cl 801.221 (1) of Schedule 2 to the Migration Regulations 1994 (Cth) was met. That provision could be met, inter alia, by satisfaction of cl 801.221 (2), which was one of the ways in which the first applicant advanced his case.

f) Cl 801.221 (2) turned, inter alia, on whether the first applicant still had a spousal Relationship with his partner visa Sponsor at the time of the Tribunal Hearing: cl 801.221 (2)(c).

g) The first applicant made clear oral submissions at the Hearing that the Relationship still existed at that time.

h) The outcome of the review to the second, third and fourth applicants depended on the success of the first applicant's case.

1. The existence of the Relationship at the time of the Hearing was therefore an issue that "[arose] in relation to the decision under review".

j) The second applicant was an "applicant" within the meaning of s 360(1), with the result that the Tribunal was obliged to invite her, and allow her to, "give evidence and present arguments relating to the issues arising in relation to [existence of the Relationship, among other things]".

k) In response to a hearing invitation form issued by the Tribunal and addressed to all applicants, the applicants answered in the affirmative a question on whether the second applicant would participate in the hearing, thereby clearly indicating that they wished for her to give evidence and present arguments on those issues, pursuant to s 360(1).

1. All of the applicants, including the second applicant, attended the Hearing on 31 May 2021 in person, when the second applicant was seventeen years, eight months and twenty-nine days old.

m) Despite the clear indication that the second applicant wished to avail herself of her entitlement to give evidence and present arguments, the Tribunal stated as follows in its statement of decision and Reasons: "The Tribunal declined to take oral evidence from the [second applicant] as she is under 18 years old".

n) The refusal to allow the second applicant to give evidence and present arguments constituted a failure to comply with s 360(1) of the Act.

o) Alternatively, the finding that the second applicant, who was nearly eighteen years old at the time of the Hearing, should not be allowed to give evidence and present arguments on the basis of her age was legally unreasonable and/or not supported by the evidence, as nothing in the evidence suggested that she was incapable of doing so.

p) In the further alternative, such a refusal constituted a constructive failure to exercise jurisdiction.

q) The Tribunal's finding that the Sponsor had provided it with a Letter requesting for her visa sponsorship to be withdrawn did not constitute, pursuant to cl 801.221 (2)(b), an independent basis upon which it could affirm the delegate's decision:

1. The Sponsor could not unilaterally withdraw her sponsorship, in that the Tribunal had to consider whether her withdrawal request should be given effect, which it never considered.
2. Alternatively, as cl 801.221 (2)(b) refers only to the withdrawal of the sponsorship for the grant of a subclass 820 visa, the withdrawal request was invalid if it did not specify which subclass it concerned or specified only subclass 801.

r) However that error is characterised, had it not been made, the second applicant could have given evidence and presented arguments on the existence of the Relationship and sponsorship at the time of the Hearing. It follows that the Tribunal's error was material and thus jurisdictional.

1. On 29 July 2021 and 7 September 2021, a registrar of the Court made procedural orders, including that the applicants file and serve any amended application by 2 December 2021 and, upon the matter being listed for hearing, the applicants file and serve written submissions 28 days prior to the hearing.
2. Following a period of inactivity, on 7 April 2025 the registry of the Court informed the parties that the matter was listed for hearing on 30 May 2025. By consent, to accommodate the availability of the 2021 Lawyer, the hearing date was moved to 14 July 2025.
3. On 24 June 2025, the registry of the Court received a letter from Victor Lo, a solicitor based in Perth, who wrote that the Applicant had recently engaged his firm. Although the 2021 Lawyer did not file a notice of withdrawal of lawyer under r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, and Mr Lo did not file a notice of appointment under r 9.02, the proceeding continued on the basis that Mr Lo now acted for the applicants.
4. On 30 June 2025, the first respondent filed a written submission (RS).
5. The applicants did not file any further materials prior to the hearing on 14 July 2025.

1. At the hearing in this Court on 14 July 2025, Victor Lo, solicitor, appeared for the applicants and Liam Dennis from Mills Oakley appeared for the first respondent.
2. Mr Dennis tendered a Court Book (CB) which contained the Tribunal's decision and documents before the Tribunal.
3. I asked Mr Lo if there was additional evidence he wished to tender. Mr Lo requested time to obtain a transcript of the hearing before the Tribunal in May 2021. I asked Mr Lo to explain the relevance of a transcript to the judicial review proceeding. Mr Lo was unable to answer this question.
4. In circumstances where:

(a) there was no evidence, let alone evidence in admissible form, to explain the applicants' delay in seeking to obtain a transcript of the hearing before the Tribunal; and

(b) Mr Lo was unable to explain the relevance of a transcript to the judicial review proceeding,

I refused to accede to Mr Lo's request for time to obtain a transcript of the hearing before the Tribunal.

1. Mr Lo initially pressed both grounds in the Application. However, during closing submissions Mr Lo abandoned ground 2.
2. Mr Lo made closing submissions. I address relevant submissions concerning ground 1 below. Mr Lo also raised a new ground. He contended that the Tribunal did not give the applicants reasonable time to prepare their case (New Ground). I asked Mr Lo if the applicants asked the Tribunal for additional time to prepare their case. Mr Lo was unable to answer this question.
3. Mr Dennis made closing submissions. In relation to the New Ground, Mr Dennis opposed the granting of leave to the applicants to advance the New Ground on the basis that:

(a) The applicants have not formally applied for leave to raise the New Ground, including preparing a document which records the New Ground in writing.

(b) Mr Lo has not explained the applicants' delay in raising the New Ground.

(c) The New Ground is without merit.

1. Mr Dennis explained why the New Ground was without merit.

Factual background to ground 1 in Application and New Ground

1. 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.
2. 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 www.aat.gov.au/landing-pages/practice-directionsguides-and-guidelines/covid-19-special-measures-practice-direction-migra) for further information and directions about the current procedures for the AAT, in particular paragraphs 6.7 to 6.13.

Witness statements

6.7 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.

1. 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.

1. 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.

1. 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.
2. 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.

1. On 27 April 2021, the applicants' representative responded with the words "Noted Thanks" (CB 331).
2. On 17 May 2021, the Tribunal emailed to the applicants' representative a letter to the applicants inviting them to comment on adverse information, being that the Sponsor had withdrawn her support for the Applicant's visa application (CB 332-339).
3. On 24 May 2021, a new representative (New Representative) sent a letter to the Tribunal. The letter stated in part: (CB 341)

I have been appointed to act for the clients in the above matter and have attached a Form MR5 as required.

I seek to request an extension of time to respond to your letter dated 17 May 2021, in which you invited the appellant to comment on or respond to information and provide information.

Initially, the appellant was scheduled to attend a hearing on 31 May 2021 about the refusal of his Partner (Class BS) subclass 801 visa application. While the previous Migration Agent was preparing his submission on the matter, the Sponsor in the partner visa application withdrew her sponsorship, which led to your request dated 17 May 2021.

The Migration Agent also withdrew from the case. Therefore, the appellant had to look for another agent to represent him, and it took him some time to find me.

I have assessed the case and believe that Mr Isaac Kwaku Yeboah had suffered domestic violence perpetrated by the Sponsor, Mrs Erica Soko.

I humbly implore the Tribunal to grant us some time for me to study the case properly, gather evidence and present our submission.

1. On 25 May 2021, the Tribunal emailed to the New Representative a letter responding to the New Representative's request for an extension of time. The Tribunal wrote: (CB 350)

I am writing on instructions from the Member conducting your review ...

1. We have considered the request carefully but have decided not to grant an extension of time. The comments or response and the information must therefore be received by 31 May 2021, as previously advised. On 28 May 2021, the New Representative sent an email to the Tribunal attaching an updated "Response to hearing invitation". 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" on 31 May 2021, the completed document again recorded that each of the second, third and fourth applicants would participate in the hearing. The document recorded that the New Representative would not attend the hearing.
2. At 2:33 am (AWST) on 31 May 2021, which was a few hours before the hearing in Perth commencing at 1 pm (AWST), the New Representative emailed to the Tribunal a letter which responded to the Tribunal's letter dated 17 May 2021. The letter explained, with reasonable detail, the applicants' claim that the Applicant, as well as his three children, had suffered family violence perpetrated by the Sponsor. Some representations in the letter suggested that the Applicant's children could give evidence in support of a claim that they had suffered family violence perpetrated by the Sponsor, although the content of the evidence that the second applicant, Abigail, the youngest of the three children, could give was not clear.

1. On 31 May 2021, all four applicants attended the hearing before the Tribunal. The Tribunal at [5] recorded the following:

The applicants appeared before the Tribunal on 31 May 2021 to give evidence and present arguments. The Tribunal received oral evidence from the first named applicant and the secondary applicants, Gertrude Yeboah and Eugene Yeboah. The Tribunal declined to take oral evidence from the second named applicant Abigail Yeboah as she is under 18 years old.

1. The applicants contend in ground 1 of the Application that the Tribunal's refusal to take oral evidence from Abigail involved a jurisdictional error.
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LPDT) at [2]-[4] and [6]-[7] the High Court stated:

[2] Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact,it is "in law ... no decision at all" and is in that sense "void".

[3] Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

[4] A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision-making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision-making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).

[5] ...

[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance.

1. On application of the approach in LPDT at [4], the first question is "whether an error has occurred".

1. In considering whether an error has occurred, it is necessary to consider the factual context in which the Tribunal declined to take oral evidence from Abigail. Aspects of the context are as follows.
2. First, the Tribunal's reasons at [3], [20] and [21] indicate the determinative issue the subject of the Tribunal's consideration at the hearing. Specifically:

(a) The Tribunal at [3] stated that a primary criterion in cl 801.221, which was a criterion to be satisfied at the time of decision, was that "the applicant [is] the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist".

(b) The Tribunal at [20] was "satisfied the [A]pplicant and the sponsor were in a partner relationship and that this relationship had ceased". As recorded by the Tribunal at [16], the Applicant acknowledged at the hearing before the Tribunal that his relationship with the Sponsor had ceased.

(c) It followed that, as stated by the Tribunal at [21], "the issue that arises 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".

1. Second, the Tribunal's invitation dated 9 April 2021 to the applicants informed the applicants about the Practice Direction. Relevant paragraphs, contained in the invitation dated 9 April 2021, are set out in paragraph 37 above. The letter added a request that the applicants "provide all documents you intend to rely on to support your case by 24 May 2021". In connection with the applicants' complaint to this Court that the Tribunal erred by declining to take oral evidence from Abigail:

(a) With reference to paragraph 6.7 of the Practice Direction, the applicants did not lodge with the Tribunal a "signed and dated statement" from Abigail "setting out the evidence [Abigail] will give at the hearing".

(b) With reference to paragraph 6.8 of the Practice Direction, the applicants did not lodge with the Tribunal "an outline of the evidence [Abigail] will give and how it is relevant to your case". I consider that the submission sent by the New Representative to the Tribunal on 31 May 2021 did not contain such an outline of evidence from Abigail.

1. Third, the Tribunal informed the applicants' representative in an email dated 27 April 2021:

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.

1. Again, neither the applicants' representative at that time, nor the New Representative, provided the Tribunal with a statutory declaration from Abigail.
2. Fourth, as recorded in the Tribunal's decision at [48], the Tribunal gave the applicants a further limited opportunity to provide evidence to the Tribunal after the hearing, and the applicants took up that opportunity and provided further evidence on 8 June 2021. The applicants' representative could have provided, but presumably chose not to provide, a statutory declaration or statement from Abigail.
3. In light of the factual context explained in the above paragraphs, taking into account:

(a) the decision of the applicants not to provide to the Tribunal prior to the hearing a written statement from Abigail which set out her evidence; and

(b) the decision of the applicants not to provide to the Tribunal after the hearing a written statement from Abigail which set out her evidence,

it is surprising that the applicants now complain to the Court that the Tribunal erred in declining to take oral evidence from Abigail at the hearing.

1. In considering whether an error has occurred, it is also necessary to consider the statutory context in which the Tribunal declined to take oral evidence from Abigail.
2. Sections 359, 359B and 360 of the Act relevantly provided at the time of the Tribunal's decision:

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

359B Requirements for written invitation etc

(1) If a person is:

(a) invited in writing under section 359 to give information; or

(b) invited under section 359A to comment on or respond to information;

the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

359C Failure to give information, comments or response in response to written invitation

(1) If a person:

(a) is invited in writing under section 359 to give information; and

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. The first respondent at RS [29] "accepts the Tribunal breached s 360(1) of the Act in relation to" Abigail, but contends the breach was not material.
2. For the following reasons, I am not persuaded that the Tribunal breached s 360(1) in a manner which would constitute jurisdictional error but for the question of materiality.
3. First, the Tribunal:

(a) permitted Abigail to attend the hearing on 31 May 2021;

(b) did not prevent Abigail, at the hearing, from "present[ing] arguments relating to the issues arising in relation to the decision under review" within the meaning of s 360(1); and

(c) did not prevent Abigail from giving written evidence prior to the hearing or in the period after the hearing referred to in the Tribunal's decision at [48]: see paragraphs 37 to 41 and 57 above.

1. The Tribunal thereby invited Abigail to attend a hearing, which she attended. Further, I consider that the Tribunal provided Abigail with a "meaningful opportunity" to present her case, noting that "what is a meaningful opportunity, or a real chance, will be fact dependent in each case": Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [51]. While Mr Lo asserted in oral submissions that the Tribunal, by not permitting Abigail to give oral evidence, did not give the applicants a fair hearing, he did not explain why the hearing was not fair. I consider that, just as the Tribunal can decide whether a hearing under s 360(1) is to be conducted in person, by video link or by telephone (which decision will require consideration of the particular circumstances at the time), so too the Tribunal can decide (again based on the particular circumstances) whether an applicant can give evidence orally or in written form. The obligation placed on the Tribunal by s 360(1) to "invite the applicant to appear before the Tribunal to give evidence" does not oblige the Tribunal to take oral evidence from the applicant.
2. I consider that, in the particular circumstances, which included:

(a) the opportunities provided by the Tribunal to Abigail to give written evidence;

(b) the irrelevance of evidence Abigail could give to the determinative issue for the Tribunal (see paragraph 53 above); and

(c) the fact that the Tribunal took oral evidence from all other applicants,

the Tribunal, by not permitting Abigail to give oral evidence, did not breach its obligation under s 360(1).

1. Second, if I am wrong and the Tribunal breached its obligation under s 360(1) of the Act by not permitting Abigail to give oral evidence, as stated in M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; 155 FCR 333 (M) at [32] and [33], not "all breaches of the procedural requirements imposed by the Act would give rise to jurisdictional error" and "the question of whether or not a failure to comply with procedural requirements renders the relevant decision invalid will be determined having regard to the considerations identified by the High Court in" Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 390-391. Tracking part of the language in M at [36], I "am not persuaded that a legislative intention can be discerned" that a procedural decision by the Tribunal to not permit an applicant to give oral evidence, while permitting the applicant both before and after the hearing, to give written evidence, "should lead to invalidity of the Tribunal's ultimate decision". For example, the statutory obligation in s 360(1) focuses on the issue of an invitation, rather than the taking of oral evidence at a hearing, and an ability to give oral evidence, in contrast to written evidence, is not a "statutory procedural safeguard" (M at [36]). With reference to LPDT at [4], on application of the approach in M at [32]-[36], the breach in the present matter does not involve "a breach of an express or implied condition of the statutory conferral of decision-making authority".
2. Third, if the above analysis is correct, the applicants' real complaint is that the Tribunal made a procedural decision at the hearing on 31 May 2021 to decline to take oral evidence from Abigail which was legally unreasonable in the manner discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. It is stated in particular (o) of ground 1 of the Application that the Tribunal's decision was legally unreasonable "as nothing in the evidence suggested that she was incapable of doing so".
3. In Singh at [44]-[47] the Full Court stated:

[44] ... Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process ... However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls "an area of decisional freedom": it has the character of a choice that is arbitrary, capricious or without "common sense".

[45] There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons ...

[47] ... we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court ...

1. In AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 (AYX17), the Tribunal refused to accede to the applicant's request to call two witnesses to give oral evidence at the hearing before the Tribunal. The applicant contended that the Tribunal failed to give real and genuine consideration to its request and the Tribunal's procedural decision for refusing to accede to the applicant's request was legally unreasonable. The Tribunal, in paragraph 45 of its decision, gave three reasons for its refusal to accede to the applicant's request. In considering the contention that the Tribunal failed to give real and genuine consideration to the applicant's request, the Full Court stated at [57], [59] and [61]:

[57] The question on appeal is whether these reasons, considered in their proper context, reveal that the Tribunal did not give real and genuine consideration to the appellant's wish that it hear the evidence of these two witnesses. In assessing this contention, the Court can and should examine the relevant documentary evidence before it on the appeal, together with the transcript of the review hearing. The purpose of referring to the documentary evidence, and the transcript of the review hearing, is to ensure the Tribunal's reasons are read in their proper context.

[58] ...

[59] In the present case, the Tribunal's reasons are set out in [45] of its decision, read with [7]. They must be read fairly, and in context, but to say as much is not to allow them to be rewritten by reference to statements made by the Tribunal during the hearing.

[60] ...

[61] However, in this case, the Tribunal chose to explain its exercise of discretion in its reasons given under s 430 of the Migration Act, and the Court is entitled to treat what is said there by the Tribunal as a complete explanation for why it chose to exercise the discretion as it did. We accept that the statement of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (to the effect that if a Tribunal does "not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material") is not directly applicable because the content of the s 430 obligation attaches to the Tribunal's reasons for affirming or setting aside the decision under review rather than its reasons for exercising a procedural discretion. Nevertheless, it seems to us the same inference can be drawn: if a decision-maker in the Tribunal's position incorporates into its s 430 statement a set of reasons for the exercise of a procedural discretion, a Court on judicial review is entitled to take those to be the Tribunal's explanation for the exercise of power, so that the Court can infer the matters to which the Tribunal does not refer were not matters activating the Tribunal when it exercised the discretion. Otherwise, the rationale for giving reasons evaporates.

1. In considering the contention that the Tribunal's procedural decision was legally unreasonable, the Full Court stated at [88]:

If one takes the approach of teasing out each of the reasons given by the Tribunal in this case for not calling the two witnesses, and separating those reasons out from each other, then there is some force in the appellant's criticisms of the Tribunal's reasoning.

1. The Full Court, after carefully considering the three reasons and criticising aspects of the reasons, continued at [93]-[96]:

[93] If these passages were read in isolation, the appellant's arguments may have some force. That would not, however, be the appropriate approach. In determining whether an exercise of power is properly characterised as being so outside the bounds of decisional freedom as to be beyond the authority given by statute to a decision-maker, the Court must be careful not to substitute its own opinion for that of the repository of the power. These can be fine lines in the actual application of principle.

[94] In Stretton ...Allsop CJ said at [7]:

It is in relation to the second context, the "outcome focused" application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is "an area decisional freedom" of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.

[95] Further, in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [54], the Full Court said:

We also accept that a line must be maintained between a court's emphatic disagreement with the merits of a tribunal's reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. That is the distinction identified in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS) at [34].

[96] While it is possible, by segmenting the Tribunal's reasons, to strip the reasons of what might be seen to be any intelligible justification, and to highlight what might appear to be a misconception by the Tribunal of the scope of the evidence which each of the proffered witnesses could give, in our opinion (and not without some hesitation) the exercise of power by the Tribunal in this case is not susceptible to the characterisation of a legally unreasonable exercise of power.

1. For the following reasons, I do not accept that the Tribunal's procedural decision in the present matter to not permit Abigail to give oral evidence was legally unreasonable.
2. First, if the Court's consideration of the reasonableness of the Tribunal's procedural decision to not permit Abigail to give oral evidence is limited to the single reason given by the Tribunal at [5], it could fairly be said that the reason was irrational since the fact that Abigail was a few months under 18 years old had no logical or rational bearing on her ability to give oral evidence at a hearing before the Tribunal. However, the reason provided by the Tribunal at [5] must be considered "in [its] proper context" (AYX17 at [57]) and "read fairly and in context" (AYX17 at [58]). Part of the context was that the Tribunal:

(a) "was satisfied the applicant and the sponsor were in a partner relationship" (at [20]);

(b) identified that the determinative issue "that arises on the evidence ... is whether the applicant has suffered family violence committed by the sponsor within the meaning of the Regulations";

(c) took oral evidence from Abigail's older siblings; and

(d) was aware that Abigail's evidence was irrelevant to the determinative issue.

In this context, I consider the reason given by the Tribunal at [5] for declining to take oral evidence from Abigail (that "she is under 18 years old") was to explain why it took oral evidence from the older siblings, but not Abigail.

1. Where the Tribunal provides reasons in its statement of reasons given under ss 368 or 430 of the Act for exercising a discretionary power, whether the Court "will treat what is said there by the Tribunal as a complete explanation for why it chose to exercise the discretion as it did" and whether that "inference can be drawn" (AYX17 at [61]) requires a consideration of the context and reasons as a whole. In the present case, I consider it unlikely that the sole reason the Tribunal declined to take oral evidence from Abigail was that she was a few months under 18 years old. Instead, I consider that the more likely inference to be drawn from the Tribunal's decision is that, in a context where the Tribunal was aware that Abigail's evidence was irrelevant, the Tribunal gave a reason at [5] for why it took oral evidence from the older siblings, but not Abigail.
2. Second, in any event, I consider that, in the context explained in paragraph 73 above, the Tribunal's procedural decision was comfortably within the Tribunal's area or bounds of decisional freedom.
3. Fourth, if my construction of the Tribunal's reasons explained in paragraph 74 above is wrong and the Court's consideration of the reasonableness of the Tribunal's procedural decision to not permit Abigail to give oral evidence is limited to the single reason given by the Tribunal at [5], as stated in paragraph 73 above, it could fairly be said that the reason was irrational. However, as stated in Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; 298 FCR 277 at [54], "illogical reasoning will not go to jurisdiction if that reasoning or finding of fact was immaterial ... to the ultimate conclusion or end result".
4. In the present matter, the determinative issue for the Tribunal was, as stated at [55], that "the evidence submitted in support of the applicants' claim for family violence does not meet the statutory requirements specified in IMMI 12/116". As correctly stated at RS [41], "any oral evidence given by [Abigail] at the hearing could not have changed this outcome". At the hearing in this Court on 14 July 2025, I directed Mr Lo's attention to this proposition in RS [41]. Mr Lo stated that he did not agree with the proposition at RS [41], but he could not suggest any oral evidence Abigail could have given which might have changed the outcome.

If error has occurred, whether error is jurisdictional

1. If the above analysis is wrong and the Tribunal committed an error, as stated in LPDT at [7] and [14], "an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred" and "the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional".
2. Mr Lo did not persuade me that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. For example, Mr Lo did not identify any oral evidence Abigail could have given which might have affected the Tribunal's finding at [55] that "the evidence submitted in support of the applicants' claim for family violence does not meet the statutory requirements specified in IMMI 12/116".
3. For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal's decision.

1. The New Ground was to the effect that the Tribunal did not give the applicants reasonable time or additional time to prepare their case.

Whether applicants should be permitted to raise New Ground

(a) Mr Lo did not explain the applicants' delay in raising the New Ground.

(b) Mr Lo did not file or serve a written submission concerning the New Ground prior to the hearing in this Court on 14 July 2025.

(c) As explained below, the New Ground lacked particulars such that it was not entirely clear which procedural decision of the Tribunal was being challenged by the applicants.

(a) Mr Lo was only recently retained by the applicants.

(b) The issue raised in the New Ground is not unmeritorious.

(c) Mr Dennis was able to respond to the New Ground at the hearing.

1. On balance, I consider it appropriate to permit the applicants to raise the New Ground.

1. Mr Lo contended that the Tribunal did not give the applicants reasonable time or additional time to prepare their case. Beyond this assertion, Mr Lo did not develop the contention.
2. In reflecting on Mr Lo's contention after the hearing, it was not clear to me whether Mr Lo was contending that:

(a) the Tribunal ought to have adjourned the hearing on 31 May 2021; or

(b) at the end of the hearing on 31 May 2021, the Tribunal ought to have given the applicants additional time (beyond the limited time given) to obtain evidence which met the statutory requirements of IMMI 12/116.

1. In relation to whether the Tribunal ought to have adjourned the hearing on 31 May 2021, the chronology of events is set out in paragraphs 37 to 47 above. As stated in paragraph 45 above, by letter dated 25 May 2021 the Tribunal refused to accede to a request by the New Representative in a letter dated 24 May 2021 for additional time to respond to the Tribunal's letter dated 17 May 2021. The Tribunal did not give reasons for its refusal in its letter dated 25 May 2021. However, it gave the following reasons in its decision at [13]-[14]:

[13] The Tribunal received correspondence on 24 May 2021 from the applicant appointing a new registered migration agent. The newly appointed registered migration agent said the previously registered migration agent withdrew his services. The newly appointed registered migration agent said he believed the applicant had suffered domestic violence perpetrated by the sponsor. The newly appointed registered migration agent sought an extension of time to respond to the Tribunal's invitation of 17 May 2021 to study the case properly, gather evidence and present his submission.

[14] The Tribunal declined the request to extend the time in which to provide information. The delegate's record of decision dated 15 May 2019 informed the applicant there was insufficient evidence to support that he and the sponsor, at the time of decision, maintained an ongoing spouse relationship. The applicant made application to the Tribunal for review of the decision on 29 May 2019. The Tribunal acknowledged the application in writing on 29 May 2019 and notified the applicant of the requirement to advise of changes to his circumstances and to lodge documents, statements or information supporting his application as soon as possible. The Tribunal received no advice of changes to the applicant's circumstances or further documents, statements or information from the applicant to support his application. The applicant was on notice of the scheduled hearing date for about five weeks before he obtained a new registered migration agent, a week before the hearing. Despite the applicants new registered migration agent forming the opinion the applicant suffered family violence, the Tribunal received no evidence with the request for an extension of time that the applicant claimed he had suffered family violence. The Tribunal considers the applicant has had ample opportunity since being advised of the delegate's decision to study the case properly, gather evidence and present his submissions

1. It "would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power"; see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [84]. Mr Lo did not contend that the Tribunal's reasons at [13]-[14] did not demonstrate a justification for the exercise of power. I consider that the Tribunal at [13]-[14] provided a reasonable justification for its procedural decision not to adjourn the hearing or otherwise give the applicants additional time to respond to the Tribunal's letter dated 17 May 2021.
2. In relation to whether the Tribunal, at the conclusion of the hearing on 31 May 2021, ought to have given the applicants additional time (beyond the limited time given) to obtain evidence which met the statutory requirements of IMMI 12/116, the Tribunal gave the following reasons in its decision at [41]-[48]:

[41] The Tribunal considered if additional time should be allowed for the applicant to obtain evidence specified in IMMI 12/116.

[42] The applicant was on notice, by way of the delegate's decision record in May 2019, the evidence he presented did not demonstrate he and his sponsor had a continuing and genuine relationship at the time of its decision and he did not meet the requirements of cl.801.221 (2). The applicant provided no further information or evidence in support of his application in the nearly 2 years before the Tribunal's hearing invitation on 9 April 2021. The applicant accepted the Tribunal's invitation to the hearing on 16 April 2021

[43] The Tribunal acknowledges the sponsor withdrew her sponsorship shortly before the hearing. The applicant was advised by the Tribunal in writing on 17 May 2021 that he could not meet the requirements of cl.801.221 (2) if he was not sponsored. The applicant was invited to comment on the sponsorship withdrawal and, if his relationship had ceased, to provide information that he may meet a criterion alternative to continuing in a spouse relationship and/or continuing to be sponsored.

[44] The Tribunal is not persuaded the applicant genuinely considered his spouse relationship to be ongoing following his wife moving, for unknown duration, to the opposite side of the country. The applicant told the Tribunal he knew 6 months after the sponsors departure in November 2019 she was not returning to Western Australia. The Tribunal acknowledges the sponsor visited Western Australia for a time in early 2021 but does not consider this visit gave reason to the applicant to believe his relationship (with) the sponsor was continuing or resumed.

[45] The Tribunal acknowledges the applicant's representative at the time of hearing had only been recently appointed. The applicant told the Tribunal he changed representatives because the previous representative was not assisting him. The applicant's current migration agent submits the applicant's Pastor was approached to provide written evidence but declined. The applicant's representative submission received by the Tribunal on the day of the hearing made no indication any of the applicants were taking any steps to obtain evidence that would meet the statutory requirements of IMMI 12/116 for the purposes of r.1.23.

[46] The applicant had ample opportunity to prepare his case on the basis he had a genuine and continuing spouse relationship with the sponsor if he believed that to be so. The applicant provided no information or documents to support his case. The applicant knew his wife was not returning to live with him around 6 months after November 2019 when she moved to Queensland. The Tribunal does not accept the applicant considered his relationship to be a genuine and continuing spouse relationship after he knew she was not returning. The applicant did not tell the Tribunal or Department about his changed circumstances. The Tribunal considers the applicant knew his relationship had ceased, at least in May 2020 when he knew the sponsor planned not to return to Western Australia.

[47] The applicant has had ample opportunity to prepare his application to the Tribunal on the basis his relationship with the applicant was not continuing, notwithstanding the sponsor ultimately withdrawing her sponsorship 14 days prior to the hearing.

[48] At hearing the Tribunal told the applicant it would not formally delay a decision in his application in order for him to begin to prepare evidence. The Tribunal explained to the applicant it was however required to consider all evidence it received prior to making its decision.

1. Again, Mr Lo did not contend that the Tribunal's reasons at [41]-[48] did not demonstrate a justification for its exercise of power.. I consider that the Tribunal at [41]-[48] provided a reasonable justification for its procedural decision not to give the applicants additional time (beyond the limited time given) to obtain evidence which met the statutory requirements of IMMI 12/116.
2. For the above reasons, the New Ground does not identify a jurisdictional error in the Tribunal's decision.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Dennis sought an order that the applicants pay the first respondent's costs in the sum of $6,100 which was less than the first respondent's solicitor/client costs.
2. In relation to the amount of the costs order, Mr Lo did not oppose an order in the amount of $6,100. I consider this amount is reasonable.
3. In relation to the parties against whom the costs order should be made, the second, third and fourth applicants are children of the first applicant and were born in 2003, 1998 and 1994 respectively. The third and fourth applicants were over the age of 18 on the day this court proceeding commenced. The second applicant (Abigail), born in September 2003, was two months short of her 18th birthday. On 29 July 2021, the Court made an order by consent that the Applicant was appointed as the litigation guardian of the second applicant.
4. Mr Lo did not oppose the making of a costs order against all four applicants.
5. I consider it appropriate that a costs order, in addition to being against the first applicant, should also be against the third and fourth applicants. However, in circumstances where:

(a) the litigation guardian order remained in force up to the hearing in this Court on 14 July 2025;

(b) the first respondent took no steps to vacate the litigation guardian order from the time the second applicant turned 18; and

(c) the opportunity for Mr Lo to consider this issue and seek instructions from the applicants, when I raised it at the end of the hearing on 14 July 2025, was very limited,

I am not inclined to make a costs order also against the second applicant.

1. Accordingly, I will order that the first, third and fourth applicants pay the first respondent's costs in the sum of $6,100.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.