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. It broke up in January or February 2016, he claims due to racial slurs against him, however the parties recommitted in April 2016. They began living together in August 2016 at the sponsor’s home in Inala, he claims. The two married nine months later on 28 January 2017. They applied for the visa under review and entered into a rental tenancy together. In a submission dated 22 June 2018, the applicant claimed he was physically abused by the sponsor on 13 June 2017, less than six months into their marriage. On 11 December 2017, the sponsor sought a Protection Order against the applicant claiming abuse. In April 2018, the sponsor moved out of the home and formally withdrew her sponsorship.

7.    In a submission to the Department made on 17 July 2018, the applicant claimed to have been subjected to violence and racial abuse by the sponsor, the latter “every week”, and he provided evidence that on 22 May 2018 he sought a Protection Order against the sponsor. He later withdrew it, he claims, on legal advice.

8.    Towards the end of the hearing, the applicant stated that on 29 April 2018 he began a relationship with Theresa Luafutu, an Australian citizen aged 36 with whom he now lives and who is the mother of his infant biological child. He claims he contacted Ms Luafutu two days after his wife left the home and asked Ms Luafutu to “be in his life”. He claims he and the sponsor have divorced and after the hearing, he provided a Court order terminating the marriage on 22 August 2020.

The delegate’s considerations

9.    The applicant provided the delegate’s decision of 20 July 2018 to the Tribunal. The delegate found that the parties at the time of decision were not in a spousal or de facto relationship as defined under section 5F and 5CB of the Act.

1. The delegate stated in the decision that the Department had received information that the relationship with the sponsor had ceased, however the breakdown of the relationship could not be considered until the applicant had established whether he met Regulation 820.211. As the delegate was not satisfied on the evidence that the applicant meets Regulation 820.211, the breakdown of the relationship was not considered.

The applicant’s claims on review

1. In a submission to the Tribunal filed on his behalf by the applicant’s representative, the applicant seeks review on the basis that: (1) he was the spouse of his sponsor, as defined in the Act and (2) even though the relationship has broken down, the applicant suffered family violence committed by his spouse and he remains eligible for the visa.

2. In the present case, the applicant submits that violence first occurred on 13 June 2017 after the sponsor accused the applicant of cheating on her;  and that this and further episodes of conflict led to the breakdown of the relationship, along with other factors. The applicant described the factors as being that the parties were in dispute over a car; both talked very loudly and competed for space in conversation; the applicant was frequently racially abusive towards him; and the sponsor’s friends often taunted the sponsor about why a young, good-looking man like himself would be interested in her, and told her that he was using her for the visa.

ISSUES AND LAW

1. In the present case, the applicant claims his relationship with the sponsor has ceased and he has been the victim of family violence. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. These Regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14). In the present case, the applicant submits that the family violence first occurred on 13 June 2017 when his wife “punched him in the testicles” and otherwise wounded him, because she suspected he was cheating on her.

Whether the relationship existed before the alleged family violence occurred

1. For visa applications made on or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the spousal relationship was still in existence. The spousal relationship must therefore have existed before it can be determined that it has ceased. If the Tribunal is not satisfied that a spousal relationship existed, the family violence exception to the continuing relationship requirement will not be available: r.1.23(3), (5), (7), (12) and (14).

2. Therefore, the issues in the present matter concern whether the applicant was in a spousal relationship with the sponsor at the time family violence is said to have occurred, and whether he may avail himself of the ‘family violence’ exception to the requirement to have maintained the spousal relationship at the time of decision.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

2. The applicant provided a Queensland Marriage Certificate certifying that he and the sponsor were married on 28 January 2017 and the marriage was registered at the General Registry at Brisbane on 30 January 2017. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

Are the other requirements for a spouse relationship met?

1. The Tribunal had before it documentary evidence contained in the Departmental and Tribunal files including, but not limited to, the Form 47SP visa application, Form 40SP sponsorship, identity documents, photographs, Form 888 Statutory Declarations, Queensland Marriage Certificate, submissions from the applicant’s representatives, personal statements, financial records, travel documentation, medical records, Protection Order applications and Police records. The Tribunal has also relied on the oral evidence of the applicant given at the hearing. Post-hearing, the applicant submitted a divorce order, his child’s birth certificate, and images of online chats between him and the sponsor (undated). The applicant also provided post-hearing, a submission authored by his migration agent, addressing some of the points raised in the hearing.

2. The Tribunal has duly considered all of the documentary evidence but has not detailed every item on the files and has not detailed every argument put to the Tribunal, particularly every detail of the oral evidence given by the applicant, which was delivered in a fast-paced and somewhat disordered manner at the hearing. Rather, the Tribunal has closely considered the hundreds of documents before it and with regard to oral evidence, has derived as faithfully as possible from the applicant’s responses to its questions and efforts to fact-check, those facts and assertions that may be afforded weight because they are directly relevant or helpful to understanding the dynamics of the marriage. Further, as previously indicated, the Tribunal has before it information that is subject to the provisions of s.376 of the Act. This material will be discussed below.

3. Informed by the documents and oral evidence provided, the Tribunal has given close consideration to each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2). The Tribunal finds as follows.

Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

1. The applicant does not claim he jointly owns assets with the sponsor. The applicant claims the parties bought a car together while they were still married, but this was their only joint major purchase, he states. At the hearing, he said the car, a Toyota Camry, was registered in his name but he was able to secure a loan for it due to his wife being an Australian citizen. No documentary evidence of a loan, the car, its registration or ownership details have been provided to the Tribunal, however the applicant referred frequently to the car being the subject of ongoing disputation between the parties. The applicant stated that the reason he and the sponsor did not own assets together was that he was the only one regularly working, and he was supporting the whole family, including four children. The sponsor had worked only two days a week. The applicant argues that the purchase of assets together is not a reasonable consideration in forming a view of a marriage as it is an option available only to those with the resources to acquire them. The Tribunal is not satisfied on the evidence that the parties shared major assets

2. In support of other financial aspects of the relationship, the applicant provided to the Department and to the Tribunal on review, ANZ Bank statements in the joint names of the parties for the periods 6 September 2016 to 6 March 2017; 6 March 2017 to 6 September 2017; 6 September 2017 to 6 March 2018; and 6 March 2018 to 26 April 2018. In the post-hearing submission, the applicant claims that he invested “very much into the relationship financially and emotionally”. In the first bank statement, the amount of $6,675 is shown as deposited in increments from “Josiah Adefila savings” and the full amount deposited is withdrawn incrementally over the period of the statement, with the final balance being $0.00. In the hearing, the applicant stated the joint account was used for savings, as the parties wanted to buy a house together. The Tribunal questioned why, therefore, most of the money deposited was near-entirely drawn out. The applicant responded that they used the account to contribute to savings and to make payments for a range of things necessary for their lifestyle. On questioning, the applicant confirmed that each party in the marriage also had their own bank account from which they made contributions to the joint account and paid for things. The Tribunal has not had the benefit of any evidence of these accounts that might support the pooling of resources within the marriage and notes no evidence of employment income of welfare payments being deposited in the joint account is apparent in the statements provided. The applicant spoke at length on how difficult it was for the parties to operate a joint account, because they had made it “two to sign” and they physically had to be at the bank to deposit or withdraw, it could not be operated at an ATM, and this proved difficult. While they paid rent and bills from the joint account, saving was the main purpose of having it, he clarified. The second statement provided contains no transactions; the third shows smaller deposits, including from “Adefila rent” with a total of $7,480 in deposits and $7,256.36 in withdrawals, leaving a balance of $223.65 which was drawn out with the contents of the next statement: the fourth and final statement has a final balance of $0.00. The Tribunal is not satisfied on the evidence that the parties pooled their resources significantly. The significance of the joint account having a two-signatory authorisation is not explained or supported in evidence.

3. The applicant claims the parties lived at various addresses while they were developing the relationship; at first in Ms Adefila’s housing commission home in Inala; then at a rental property in Redbank Plains. No evidence of the former residency is provided. He provided a tenancy agreement in three names for the latter: his own, the sponsor’s and that of Jayden Bartsch (the sponsor’s eldest son) for the period 16 June 2017 to 1 February 2018 for the property at Redbank Plains; and a tenancy agreement in the joint names of Mr and Ms Adefila only, for the period 2 February 2018 to 7 February 2019 at the same address. In a written statement, Mr Adefila said at the start of the lease, he moved between his own rental property at MacGregor until August 2016, when he “officially” moved in with the applicant. After the sponsor left the home in April 2018, he remained living there. He provided evidence that on 16 May 2018, the applicant sought access to the property from the managing agent after the locks did not work for her. The applicant argues that the tenancy agreements create evidence of a joint liability for the applicant and sponsor for the payment of rent and compensation for any damage to the apartment which may have occurred. The Tribunal accepts that the lease created a joint liability which expired with its cessation in February 2019.

4. The applicant provided air travel receipts in both names dated 27 March 2018 for $398.58 for himself, the sponsor and her child, which he claims is evidence that the three travelled to Canberra to seek a Nigerian visa for his wife, whom he wanted to join him on a visit to his home country. He also wanted to renew his passport, he added. No visa was issued and they did not go to Nigeria together because the trouble that resulted in the relationship ending in April 2018 started the day they arrived in Queensland, which was at 13:35pm on 11 April 2018. Information from Queensland Police (QPS) provided by the applicant confirms that domestic violence was reported at the applicant’s address on 18 April 2018, however report number QPXXXXX XX620 summarises that no DV occurred and a verbal argument occurred between Josiah Adefila and (name redacted by QPS) on 18 April 2018. Accompanying information confirms attendance over a property dispute on 16 May 2018, and a reported break-in on 20 May 2018.

5. The Tribunal has carefully considered all the applicant’s claims, documents and evidence in relation to the financial aspects of his case. The applicant does not claim, and the Tribunal has no evidence before it, that the applicant and sponsor have joint ownership of real estate or other major assets; however the Tribunal notes the applicant’s claim that they purchased a car “together”. The ownership of the vehicle is not supported with documentary evidence. The Tribunal found the applicant to be somewhat evasive on the topic of who owned the car, lapsing for the most part into long accounts of how obsessed Ms Adefila seemed over keeping it. He stated that “he” bought the car, and (eventually) stated it was registered in his name.  He also stated that he was able to secure a car loan because his wife was an Australian citizen and the Toyota salesman encouraged him to bring her to the dealership to make the purchase. The Tribunal accepts that ownership of the car became a flashpoint in the relationship. He gave graphic descriptions of how his wife always drove it and demanded at one point after the breakdown that the car be put in her name or there would be immigration consequences. The Tribunal accepts the parties operated a car but is not satisfied on the evidence that it was jointly owned and that it establishes that the parties purchased a major asset together.

6. The applicant claims that the extent to which the parties shared day to day expenses is supported by entries in the joint account that indicate payment of rent and utility bills. The Tribunal accepts that a few such transactions are evident in the statements, however notes there is very limited evidence of who contributed to the account and on what basis, and notes that the payment of day-to-day expenses is a routine matter for any person, whether in a spousal relationship, alone in a dwelling or in a share house. The applicant has not provided evidence that the joint account was a significant operating account within the relationship, largely because it shows money in and money out in large chunks. This tends to suggest to the Tribunal that the joint account was established for the purpose of demonstrating resource pooling, rather than being a genuine example of such, or for some other, undisclosed purpose of providing funds for the use of the other. By the applicant’s own evidence, the account was extremely difficult to operate and the Tribunal observes that the transactions in the account remain difficult to decipher because extensive questioning of the applicant did not result in a cogent explanation of how it worked. The Tribunal concludes the account was never meant to be a genuine shared account and was contrived, likely set up as a means of enhancing the applicant’s chance of a successful outcome from the partner migration program. The Tribunal notes the applicant’s claim that the parties shared the day-to-day cost of living in other ways, however these remain undetailed. He stated that they paid rent and shared the cost of bills and other household running costs from their respective income accounts. Few useful documents were put forward in this regard, save an invoice dated December 2016 (a point before their marriage) which shows two names on a $200 account for car servicing. The Tribunal notes the invoice and affords it some weight, however samples of household bills in joint names, other bank accounts, or extensive receipts for day-to-day purchases are conspicuously absent from the evidence submitted. In a written submission provided on 10 November 2021, the applicant claims that he and Ms Adefila agreed that he would contribute $211 per week to rental expenses and she would contribute $100. All other living expenses were to be split equally. The Tribunal has recorded that the applicant remained in the household for some months after the relationship had broken down and the visa was refused.  

1. The Tribunal having considered all the evidence before it and the applicant’s oral statements, is not satisfied that it provides convincing evidence of shared financial arrangements consistent with those of a spousal couple. The banking arrangements used by the parties remain obscure or absent; little in the way of receipts or accounts is provided; there is no supporting evidence as to who owns or registered the car. The Tribunal is not satisfied on the evidence before it, that the parties significantly and genuinely pooled their financial resources in relation to any major financial commitments. The Tribunal accepts that the two household leases create a joint liability at the time of application. There is no claim or evidence before the Tribunal that one person in the relationship owed any legal obligation to the other, other than that arising at the time of application from the fact of their marriage and from their rental lease.

2. On balance, the Tribunal affords the financial aspects of the case very light weight in the applicant’s favour.

Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. In support of the applicant’s claims regarding the nature of the household, the Tribunal notes the sponsor is the mother of four children, three of whom lived for periods with the sponsor, he claims. Her eldest son moved out to a share house, his brother went to his father, and the youngest was there while the sponsor remained in the home. A letter provided by Fernbrooke State School indicates that the sponsor was a guardian for the youngest and the applicant claims he drove him to school every morning. The applicant spoke generously of the boys at the hearing, and claims he helped one of them get a job. After the hearing, he submitted through his migration agent that he treated the sponsor’s children as his own, taught the eldest to drive, and provided for them. The Tribunal affords these claims some weight.

2. The applicant claims that housework in the leased property was shared between them. Mr Adefila claimed he was in charge of the outside jobs such as mowing and car washing, and he also did most of the big jobs inside as well, because Ms Adefila would not wash the floor, so he did the floors, the laundry and the other heavy jobs inside and out. They shared the cooking, he claimed. As to the household arrangements, the applicant  provided to the Tribunal a photograph of them in bed together.

3. The Tribunal has considered the nature of the household and finds the evidence provided indicates that the parties likely shared a home for a period of 20 months, from 16 August 2016 to around 18 April 2018, when the relationship ended. As a married couple, they shared a household for a period of approximately 15 months. Photographs provided to the Tribunal of the applicant with the sponsor’s sons confirm that the applicant knew the sponsor’s children and the Tribunal accepts he assisted in their care while living together with them. Evidence is provided that on 10 May 2018, Ms Adefila requested that Josiah Adefila, named as stepfather, be removed from any contact with her son at his high school.

4. The sponsor advised the Department on 25 April 2018 that she had withdrawn her sponsorship and had left her husband. This confirms that the parties ceased living together prior to the delegate’s decision being made on 20 July 2018. There is no claim or evidence before the Tribunal that this is not the case, or that the parties resumed living together; the applicant has provided evidence that they are now divorced and he started a new partner relationship. The Tribunal having considered the evidence regarding the nature of the household finds it to have been that of parties cohabiting, amid considerable conflict, which tends to suggest to the Tribunal that they were not living together as a spousal couple, rather they were living together for contrived purposes without an intention of creating a genuine household for the parties and the children. The Tribunal accepts that the sponsor did for a time form a relationship with the sponsor’s children, however is not satisfied that this outweighs evidence provided overall about the household or demonstrates that its nature, for the relevant period of 15 months, was consistent with a household of a committed spousal couple. On balance, having considered all the evidence regarding the nature of the household, the Tribunal affords the consideration very limited weight.

5. Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

6. In support of the social aspects of the relationship, the applicant submitted to the Tribunal a number of social media posts from the sponsor depicting the parties in a range of settings. Mr Adefila has not provided evidence that Ms Adefila consents to their release, and as she has withdrawn her sponsorship, no weight can be placed upon them. After the hearing, the applicant provided undated screenshots of online discussions purported to be between himself and the sponsor, wherein he claims he is seeking reconciliation. Again, there is no evidence before the Tribunal that the sponsor consents to their release and are not weighted for or against the applicant.

7. The sponsor in his oral evidence stated that the period before difficulties began in the marriage, was “very beautiful”. He stated the two went everywhere, to clubs, invited people over, went to the beach went out to eat. He stated they constantly presented themselves as a married couple, including to the car dealer when he was buying the Toyota. They had been married at Springfield Lakes with about 20 people present, he said. The applicant provided a few photographs of the event. He observed that someone at the even had observed that his wife “did not laugh at the wedding” so he supplied a photo of her smiling. The Tribunal notes that on his evidence, the period before difficulties began, in the context of the marriage, was from 28 January 2017 to 13 June 2017, a period of less than five months. The Tribunal has considered Form 888 Statutory Declarations provided with the visa application. Each is supportive of the relationship. Afolabi Babatunde states he knew the applicant in Nigeria and provides a cultural reason for it being genuine “it is not right to marry someone for any reason as we don’t believe in divorce”. Gary William Hodgson declares that he has known the applicant for a number of years and states he and his wife attended events with the parties. He claims towards the end of the relationship, “I observed Simone a few times yelling at Josiah. I would describe Simone as someone who has quite a dominating, somewhat aggressive personality” and he had observed the applicant trying to accommodate her. Karen Hodgson declares that the parties were loving and planning IVF together. She also states that the sponsor is an aggressive person and hit the applicant but she did not witness the incidents.” Kayla Judith Hanwright states that they were planning a baby and expresses confidence the relationship will be continuing. Mandel Clare Maree Kayser declared on 10 March 2018 that she regarded the relationship as growing stronger and states they were planning to have a child together and buy a house. Olurunfemi Remi Adefila, of Texas, USA, states that she was made aware by her brother of violence in the relationship but considers that before the sponsor “became violent and aggressive” towards her brother they were in a genuine relationship.  While these declarations provide some support for the marriage as genuine and/or for it having broken up amid violence, each of the statements contains very little detail about what was witnessed at what time. The Tribunal places some weight on the statements however is not satisfied any of them provides a clear picture of when and why the claimed relationship broke up.

8. Photographs provided depict the parties in a wide range of social settings and with the sponsor’s sons. The applicant provided membership cards for a local club at Richlands. The Tribunal has considered the social aspects and accepts that the parties, for a period of five months, presented themselves as a married couple to others. The Tribunal affords the social aspects some weight.  

9. Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

10. The applicant claimed at the hearing that he recalls arriving in Australia on 29 July 2015, being very excited about being here, and he stayed at the YHA in Brisbane. He stated that he quickly called his existing partner in Nigeria and broke off the relationship he had with her, which, he said, was never going to work long distance. On the first morning onshore, he went to the front desk and asked how to find a partner, as he wanted one in his life. He was advised to look on Tinder, which he proceeded to do. On 3 August 2015, he claims he found Ms Adefila. He noticed that she was interested in “Afro Beats”. They met in person and formed a relationship. He declared in written evidence that it broke up in January or February of 2016, but they recommitted in April 2016. On 28 January 2017, the parties married, and on 27 February 2017, applied for the visa. It is not disputed that the relationship ended in April 2018. The delegate’s decision records that in a submission to the Department, the applicant claimed they moved in together in August 2016. Supporting evidence that the parties lived together from August 2016 is not provided however the Tribunal accepts that was the date of the first joint lease and therefore the evidence indicates the parties lived together from August 2016 until around 18 April 2018, a period of 20 months.

11. In a submission to the Department dated 22 June 2018, the applicant claimed the first physical conflict occurred on 13 June 2017, at their home. He stated it occurred because Mrs Adefila saw a text message on his phone from another woman and he believes she thought he was cheating on her. This resulted in a fight and a physical attack. He also claimed it occurred after he told her he was no longer interested in their marriage. He claims she assaulted him and threatened that if he reported it, he would be deported from Australia. He stated: “she knows that if she no longer sponsors me then I would not be eligible to obtain a visa. I decided not to go to the Police. I did not seek medical treatment. The difficulties “really began”, he said in December 2017 after the sponsor took out a DVO against him. He claims they would argue over small things, the abuse would start, she would threaten to withdraw her sponsorship, and would call him a “black dog” almost every day. On 24 May 2018 he sought a Protection Order in Ipswich Magistrates Court against his wife, but withdrew it on legal advice, he claims, because the sponsor had moved out and it was unlikely to succeed.

12. He stated that the relationship broke down for two reasons, first, her friends were an issue because they were all single and often told her he was using her for the visa. The second he said, was that both of them were loud. “We both wanted to talk at the same time, I reckon that was a problem, it was all so loud. The pressure was a lot, her friends had money and she wanted to be like them. I could not get her anything, we just had to live on what we could save, but it was barely covering things; if I became an Aussie, though, we could buy a house.” He stated in evidence that he did love her, he will “forever miss her and love her to my grave”. He said that the sponsor is a very lovely woman, but there was a problem with painkillers, she was on heavy doses, she also took Valium, he said, starting about six months into the relationship. She was very erratic and had never worked in her life prior to meeting him, he stated, and it was he who encouraged her to get a job and he took her son to school because he worked in the afternoons

13. He stated in response to a question as to whether he ever saw the relationship as long term, that they had, and had gone to Canberra to get a visa for her to go to Nigeria so she could meet his family. They also went, he said, so he could renew his passport. At that stage, he said, they were trying to put things together but the efforts fell apart the day they got back.

Information put under section 359AA

1. The Department of Home Affairs file BCC2017/775657 contains a Certificate pursuant to s.376 of the Act dated 11 November 2021. The Certificate indicates that s376 applies to the document(s) i/nformation contained in folios 75,76,100,104,134,136 and 139 of file number BCC2017/775657  because it was given to the Minister or to an officer of the Department, in confidence, and section 375A does not apply. It is signed by a Delegate of the Minister for Home Affairs and Secretary of the Department of Home Affairs.

2. The Tribunal provided a copy of the certificate to the review applicant prior to the scheduled review hearing, stating that the Member may refer to this document during the hearing. During the hearing, the Tribunal discussed the nature of the Certificate with the review applicant and invited him to comment upon its validity. No submissions were made by the review applicant directly as to the validity of the certificate however he indicated he agreed with her representative’s advice that the certificate was valid. Following careful consideration, the Tribunal finds that the s.376 Certificate dated 11 November 2021 is a valid Certificate, given that a public interest ground is properly cited.

3. The Tribunal did not release the material under the cover of the Certificate to the review applicant in full. Rather, the Tribunal provided 'the gist' of the material to the review applicant. It did so utilising the procedure in s.359AA of the Act as follows.

4. Regarding the Certificate dated 11 November 2021, the Tribunal said the Department had received information from a credible source that the applicant had only sought a protection order against his spouse because he wished to use it for immigration purposes and that he had told his friends this was the reason. Further, that his marriage was not genuine, that his sponsor did not know his family and his family were unaware of the marriage. Further, there was information that he had previously studied in the United Kingdom and had not declared this to the Department. The Tribunal indicated to the applicant that this information is relevant to the review as it tends to suggest that the visa applicant had misled the department about whether the relationship was genuine when it was a contrivance for immigration purposes. The Tribunal said it had not made up its mind about the information, but subject to the applicant’s comments or response, the information would be the reason or part of the reason, to affirm the decision under review. The review applicant confirmed that he understood why the information is relevant to the review. The review applicant was offered additional time before commenting on or responding to the information. He initially sought to respond immediately, however the applicant’s representative intervened and asked for an adjournment. A short break was granted. On resumption, the applicant stated that on four different occasions he suffered domestic violence and there were witnesses who were friends of the sponsor. On the first occasion she smashed the car window, she threatened to send him home; then the Police suggested he might have done this to himself. He withdrew his application for the protection order because he got all the things he asked for, the sponsor moved out, the car came back, and he was advised to withdraw. He had never been to the United Kingdom; his sister went to the UK, not him. He stated he had text messages wherein the sponsor thanked his brother for money he gave them for the marriage; he said his parents knew about the marriage and the sponsor had been in touch with his family including his mother. He had tried to make the marriage work, and there is no proof of what was being said. He denied he had ever been unfaithful to his wife.

5. The Tribunal has carefully considered the information before it regarding the nature of the commitment between the applicant and sponsor during the period of their marriage. The marriage lasted for a period of 15 months at best; it was beset by difficulties within a few months.  The Tribunal accepts that the parties lived together overall for 20 months. A difficulty with any case involving the withdrawal of sponsorship is that the account of what happened does not include testimony from the former sponsor. In this case, the sponsor did not participate in the hearing and she is no longer a party to the application, having withdrawn her sponsorship prior to a decision being made on the visa. There is no indication or claim that she wishes to reinstate the sponsorship and without any evidence from her to confirm a genuine nature to the relationship, and in the light of the dob-in information received by the Department, the Tribunal has considerable doubts about whether the relationship was ever genuine, because the evidence before it tends to suggest that it was contrived for the purposes of immigration. The degree of companionship and emotional support the parties drew from each other appears to have been minimal. There have been allegations of violence from both parties and claims of regular and vile racial abuse and threats of immigration consequences, which tends to indicate a contrived set of circumstances. The breakdown of the relationship occurred before it faced the scrutiny of the visa process. Mr Adefila claims he saw the relationship as long term; whether Ms Adefila saw it as long term cannot be settled in her absence from participation. She has ceased supporting the relationship and Mr Adefila advises that they have both moved into new relationships.

Credibility concerns

1. The Tribunal found Mr Adefila to be an evasive witness; he tended to embark on evasive and indirect rants about what happened within the relationship whenever pressed, at times repeatedly, for basic and necessary facts and details. He was cogent, on some aspects, particularly what happened when he first came to Australia. He stated that he went to stay at YHA (Youth Hostels Australia) and asked the front desk clerk how he could meet a woman who would be in his life, as he did not want to live alone. He told the Tribunal that as soon as he had arrived, he had notified a former partner in Nigeria that their relationship was over because it would be impossible to maintain it long distance. He went on to describe how he took to Tinder to find a partner, and quickly met his future wife. He met her, he said, on 3 August 2015, some five days after he arrived onshore, and he was pleased to see she knew about “Afro Beats”.  They began seeing one another, but in February 2016 they broke up for the first time. By August 2016, he had moved in with Ms Adefila, he claims. A joint bank account records lump sum cash deposits by the sponsor and unidentified lump sum withdrawals in 2016 and early 2017. The Tribunal notes the applicant did not complete the expensive studies for which the Student visa had been granted, because he said, there was no money available to him because of the relationship’s expenses. He was similarly open in describing what happened to bring about the commencement of a further relationship with a work colleague within days of the marriage ending. He stated that after the sponsor moved out, he almost immediately proposed a new relationship to his co-worker, with whom he now has a biological child. This relationship began, he stated 29 April 2018. The Tribunal notes that this claim dates it to a matter of days from when the sponsor moved out. In the hearing, the applicant claimed he called his new partner within two days of the sponsor’s departure and appeared proud of his own alacrity.

1. The Tribunal has considered very carefully what these claims infer. They may logically infer ongoing infidelity, however there is no supporting evidence, or any allegation before the Tribunal, that the relationship with the applicant’s new partner was in train prior to the departure of his sponsor from the home, but this is not established. However the Tribunal having considered the events in the light of all the other evidence provided, considers it unlikely that a new committed relationship was formed inside 11 days, as the applicant indicates it was, and the Tribunal cannot rule out that an extra-marital relationship may have been underway and that it may have precipitated the ultimate breakdown. The sponsor said his new partner was only his friend at the time; romance began later, after his wife left. The Tribunal notes the applicant and the co-worker are now in a relationship and have an infant child born in 2019. The applicant denies he was ever unfaithful to the sponsor while married. However it is not disputed that the sponsor suspected him of infidelity shortly after they married, the sponsor has stated as much. The Tribunal also takes into account that the Department received clear information that the relationship was contrived for the purposes of immigration and the marriage was not genuine. This leads to the following conclusion.

Conclusion on the nature of the commitment

1. The Tribunal having considered all of the circumstances about the nature of the commitment, as laid out above, is not satisfied that the parties provided a meaningful degree of companionship and emotional support to one another consistent with a spousal relationship, and the Tribunal is not satisfied that they saw the relationship as long term. If they had been genuinely committed for the long term, the Tribunal considers they would have made a greater effort to support one another. They were together for a time, for other, selfish reasons. The Tribunal considers the nature of the commitment to have been one of convenient pretence for the benefit of the applicant and very likely, the sponsor.

2. Any other circumstances of the relationship.

3. The applicant claims he is now in a new relationship with a child who is an Australian citizen. He claims this is relevant to the review because affirming the decision will put “so much strain on the applicant which can inadvertently affect the wellbeing of his family”, that the best interests of an Australian citizen child become a consideration. This is discussed below.

Conclusions

1. The requirements of  s 5F(2)(b)-(d)  are that the parties have a mutual commitment to shared life to the exclusion of others; a genuine and continuing relationship; and that they live together and not separately and apart on a permanent basis.

2. In the hearing, the applicant expressed his elation in July 2015 of having found himself in Australia. He described with enthusiasm that he ended his Nigerian relationship by telephone thereafter and expressed to a hostel clerk a desire to have a partner by his side without delay; he makes clear that this was his need and ambition from the moment he arrived. The Tribunal concludes that if this was his preferred course, he needed a partner quickly, because he was on a temporary visa. An Australian partner would mean he would potentially be able to remain in Australia long term. In the hearing, the Tribunal noted that the applicant came to Australia to study at Masters level, and asked how that had worked out. The applicant said it did not work out, because there was no money for study once he took up with Ms Adefila, as the lifestyle they followed was very expensive. The Tribunal notes, as explored above, that in the first six months of the joint account, more than $6,600 was deposited by the applicant and withdrawn by an unknown party, in full (leaving one cent). The Tribunal accepts that persons enter relationships for many reasons, including that they seek an immigration outcome. It bears emphasis, however, that Mr Adefila applied for a temporary visa to study, and as his failure to successfully undertake his studies demonstrates, it is likely he misled the Department as to his intent when he sought the Student visa that would bring him onshore. These events are entirely relevant to this decision because they indicate, among other things, that Mr Adefila had funds when he came here, he paid them into a joint account with the sponsor where they were promptly withdrawn. As he did not undertake his course of study, it also demonstrates that he is more than likely capable of subterfuge and pretence when it comes to immigration. The Tribunal having given active consideration to all the evidence before it, concludes that the relationship was not likely to have been genuine at the very start, because it was a contrivance for an immigration outcome. The applicant has himself highlighted that the expressed opinions of many of his wife’s friends were that the relationship did not make sense, and that the applicant was using his new wife “for the visa”. It does not help his case that the applicant was so quickly in another relationship which commenced immediately after the breakdown, and now has an Australian born child. This adds to the Tribunal’s credibility concerns about Mr Adefila.

3. The circumstances described by the applicant, and the documentary and oral evidence assessed earlier in these reasons, along with the applicant’s appearance at the hearing, create serious credibility concerns for the Tribunal about whether the applicant pretended to be in, and imitated in an untruthful fashion, a spousal relationship with Ms Adefila that extended from August 2015 to April 2018 and which he is still claiming was the real thing. The applicant was an evasive witness, he addressed most of the Tribunal’s questions with long-winded explanations that often had little to do directly with the question asked. He was clear, however, that he had wanted a partner as soon as he got to Australia, and claimed that he ended his relationship in Nigeria immediately, and became very excited about being in Australia and finding a new partner. His marriage ended, he has a new partner, and a child. The Tribunal concludes that his main concern all along was to achieve residency. In all, the evidence about the nature of the commitment, absent detailed witness support for his statements, does not weigh in his favour. Only very light weight is afforded to the first three categories of consideration in r.1.15A for the reasons described earlier, and no weight is afforded to the final category concerning the nature of the persons’ commitment. The Tribunal weighs the consideration heavily against the applicant.

4. The Tribunal having weighed all the evidence before it across the 15 specified considerations finds the claimed relationship between the applicant and the sponsor was a ‘sham’ and a ‘false relationship’ at the time the family violence is said to have occurred. The Tribunal finds that at the time the family violence is said to have occurred the applicant and the sponsor lacked a mutual commitment to a shared life as husband and wife to the exclusion of all others, they did not have a relationship that was genuine and continuing. They began living separately and apart on a permanent basis within 15 months of their marriage and have not resumed cohabitation. The Tribunal notes the sponsor withdrew her support for the application prior to the delegate’s consideration. On balance, therefore, the Tribunal is not satisfied that the parties were mutually committed to a shared life to the exclusion of others; or that they had a genuine and continuing relationship; or that they lived together and not separately and apart on a permanent basis.

Other considerations

1. The Tribunal has considered the applicant’s claim that the wellbeing of his biological child will be negatively affected by an adverse outcome in this matter. The Tribunal notes the claim and accepts that the child may well be affected by the outcome of a migration decision, but in this matter, that consideration provides no basis in on which the Tribunal may waive the requirements of the Act.

CONCLUSION

1. For the reasons above, the Tribunal is not satisfied that the applicant was in a spousal relationship with the applicant at the time of the application. The Tribunal accepts the applicant was married to the sponsor and was living in the same residence as her at the time the family violence is said to have occurred. However, as the Tribunal has found, the applicant and the sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and the relationship between them was not genuine and continuing, the Tribunal finds the requirements of the Act were not met at the time the family violence is said to have occurred.

2. The Tribunal is not satisfied that at the time the family violence is said to have occurred Mr Adefila and Mrs Adefila were in a spousal relationship as defined in the Act. Therefore, Mr Adefila does not satisfy the requirements of cl.820.211(2)(a). The Tribunal notes the applicant contends he suffered family violence during the relationship and has tended some evidence in support of a non-judicially determined claim. However, given the Tribunal’s conclusion in relation to cl 820.211(2)(a) there is no requirement for it to make a finding on the family violence issue. The relevant spousal relationship must have existed before it can be determined that it has ceased and family violence has been suffered: Guven v Minister for Immigration and Anor [2006] FMCA 311. Accordingly, the Tribunal makes no finding in relation to whether family violence occurred in the applicant’s case because the Tribunal has found he does not satisfy the threshold criteria to be in a spousal relationship at the relevant time.

3. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

4. There is no information before the Tribunal that the applicant meets the criterion on any other basis.

5. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of the visa application.

6. Therefore the applicant does not meet cl 820.211.

7. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Meredith Jackson
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15A     Spouse

1. For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

2. If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

1. The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day to day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long term one.

2. If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).