Adefila (Migration) - [2021] AATA 4867

Adefila (Migration) [2021] AATA 4867 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Josiah Damilola Adefila
CASE NUMBER:  1822606
HOME AFFAIRS REFERENCE(S):          BCC2017/775657
MEMBER:Meredith Jackson
DATE:3 December 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 03 December 2021 at 8:29am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship prior to a breakdown – protection orders – family violence allegations – divorce – new relationship – Australian citizen child of the new relationship – no shared major assets – tenancy agreements – limited involvement with the sponsor’s children – contrived relationship – studies ceased – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cl 820.211; rr 1.15, 1.21, 1.23

CASES

Guven v Minister for Immigration and Anor [2006] FMCA 311

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 February 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the applicant was not the spouse or de facto partner of the sponsor.

4. The applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, Nkem Joseph Akachili of Noble Ideal Consult.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

6. The visa applicant is Mr Josiah Damilola Adefila, aged 34, a citizen of Nigeria. He declares no previous marriages. He first arrived in Australia on 23 July 2015 as the holder of a student visa valid until 30 August 2017. The sponsor at the time of application was Ms Simone Ann Adefila (nee Cann), an Australian citizen aged 41 and the mother of four children from previous relationships. The applicant claimed he and the sponsor met online within days of his arrival, on 3 August 2015. He states he was actively looking for a partner and he quickly set out to find someone. He and the sponsor met online, became friendly and started a romantic relationship.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adefila (Migration)

Details

AGLC: Adefila (Migration) [2021] AATA 4867
Case: [2021] AATA 4867
Decision Date: 3 December 2021

CaseChat Overview and Summary

The applicant, Ms. Adefila, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the refusal of her Partner (Temporary) (Class UK) visa (subclass 820). The AAT had found that Ms. Adefila's relationship with the sponsor was not genuine and subsisting, and that she had not satisfied the criteria for the visa.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law in its assessment of the genuineness and subsistence of the relationship between Ms. Adefila and the sponsor. Specifically, the court considered whether the AAT had adequately considered all relevant evidence, including allegations of family violence, protection orders, the parties' divorce from previous partners, the existence of a new relationship with an Australian citizen child, the absence of shared major assets, and limited involvement with the sponsor’s children from a previous relationship. The court also examined whether the AAT’s conclusion that the relationship was contrived was reasonably open to it on the evidence.

Justice Meredith Jackson found that the AAT had failed to properly consider and weigh all the evidence before it, particularly in relation to the family violence allegations and the impact of these on the genuineness of the relationship. The AAT’s reasoning was found to be deficient in its analysis of the documentary evidence and the applicant's oral evidence. The court held that the AAT had not adequately explained why it rejected certain evidence or how it arrived at its conclusion that the relationship was not genuine.

The court set aside the AAT's decision and remitted the matter to the AAT for redetermination in accordance with the law.

Orders