Adekoya and Minister for Immigration and Border Protection (Migration)
[2017] AATA 2028
•31 October 2017
Adekoya and Minister for Immigration and Border Protection (Migration) [2017] AATA 2028 (31 October 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5031
Re:Nadine Adekoya
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:31 October 2017
Place:Melbourne
The Tribunal affirms the decision under review.
........................................................................
Member K. ParkerMIGRATION – visa refusal – applicant is sponsor of her husband’s application for Partner (Provisional) (Class UF) visa – whether applicant passes the character test under s 501(6) – whether reasonable suspicion that applicant’s husband has been or is a member of and associated with an organisation or group that has been or is involved in criminal conduct – whether applicant’s husband was involved in conduct constituting “a crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern” – whether the person is not of good character because of past or present general conduct – whether risk present under s 501(6)(d) – whether discretion to refuse visa should be exercised – whether considerations in Direction No. 65 weigh in favour of refusing visa – visa should be refused – decision under review affirmed.
Legislation
Migration Act 1958(Cth), ss 499, 500, 501Cases
Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774
Queensland Bacon Pty Ltd v Rees [1965-1966] 115 CLR 266
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197
Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148
SRYY v Minister for Immigration and Indigenous Affairs (2005) 220 ALR 394
SZCWP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 9
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under
s 501CARome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
REASONS FOR DECISION
Member K. Parker
31 October 2017
INTRODUCTION
This is an application for review of the decision by a delegate of the Minister for Immigration and Border Protection (Minister) made on 8 September 2016 to refuse a Partner (Provisional) (Class UF) visa to Mr Sammy Abiodun Adekoya (Mr Adekoya), pursuant to s 501(1) of the Migration Act 1958 (Cth) (Act). This application is made by Mr Adekoya’s sponsor and wife, Mrs Nadine Adekoya (Mrs Adekoya). Mrs Adekoya is an Australian citizen. Mr Adekoya and Mrs Adekoya were married on 17 May 2003 and have two sons aged 13 and 6, who were born in Australia, live in Australia and who are Australian citizens.
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review this decision.
BACKGROUND
Mr Adekoya was born in Ibadan, Nigeria on 1 January 1960, where he lived and worked in a role associated with land surveying until 2000.[1] Mr Adekoya has stated that he was employed in his own company, Polland Nig. Ltd., from 1984 to 1996.[2] Mr Adekoya said in his Statutory Declaration dated 9 July 2015 that “he is Christian by religion and a Yoruba by ethnicity”.[3] He is a citizen of Nigeria, although he has previously lived in South Africa from 2000 to 2002 and from 2004 to 2016 (i.e. a total of 14 years) on “self-employment” visas. At the time of the hearing, he was present in Nigeria and gave evidence that he had been residing in Nigeria for the previous 12 months.
[1] See Supplementary G-Documents SG2/15 which indicates that Mr Adekoya held a “Certificate in Engineering Surveyor” obtained in 1984. The G-Documents and Supplementary G-Documents are sets of documents lodged with the Tribunal by the Minister and provided to Mrs Adekoya in advance of the hearing, comprising documents considered to be relevant to this application.
[2] See Supplementary G-Documents SG2/15.
[3] See G-Documents G16/86.
Mr Adekoya’s main language is Yoruba and he can read, understand, speak and write fluently in English.[4]
[4] See G-Documents G5/26.
Mr Adekoya first arrived in Australia on 13 May 2002 on a Tourist (Class TR) visa. On 21 May 2002, he lodged an application for a Protection (Class XA) visa which was refused on 5 August 2002 on the basis that: “Mr Adekoya was a member of an organisation responsible for committing ‘numerous crimes against humanity within the terms of Article 1F of the Refugees Convention’”. Mr Adekoya sought review of this decision by the then Refugee Review Tribunal (RRT). The RRT advised Mr Adekoya it had no jurisdiction to review applications refused under Article 1F of the Refugees Convention. On 12 January 2004, an application was made to the Administrative Appeals Tribunal (AAT) to review the decision to refuse the protection visa application.
Mr Adekoya departed Australia on 15 March 2004 as the holder of a Bridging A (Class WA) visa. He withdrew his application for review by the AAT referred to in the above paragraph and has since remained off shore.
On 24 March 2004, Mr Adekoya lodged a combined application with Mrs Adekoya for a Partner (Provisional)(Class UF) visa and a Partner (Migrant)(Class BC) visa. This application was refused by the Minister on 30 January 2007. The decision to refuse the visa application was subsequently overturned by the then Migration Review Tribunal (MRT) on 12 August 2008 and remitted for reconsideration with the direction that Mr Adekoya met the requirement that he was in a spousal relationship with Mrs Adekoya.
On 11 February 2009, the War Crimes Section of the Department of Immigration and Border Protection (Department) issued a War Crimes Screening Assessment in relation to Mr Adekoya stating that it was reasonable to suspect that he had been involved in the commission of crimes against humanity as defined in the Rome Statute of the International Criminal Court (Rome Statute) and complicit through his association with a violent organisation involved in crimes against humanity.[5]
[5] See G-Documents G9.
On 26 October 2009, a delegate of the Minister refused Mr Adekoya’s visa application on the basis that he did not pass the character test under s 501(6)(c)(ii) of the Act having regard to Mr Adekoya’s “past and present general conduct”.
On 26 June 2013, a further application was made by Mr and Mrs Adekoya for the same classes of visas for Mr Adekoya as referred to in paragraph [7] above.
On 3 July 2015, a Notice of Intention to Consider Refusal of a visa was sent to Mr Adekoya’s migration agent, Mr Godson Nwankwo (Mr Nwankwo) (also a lawyer at Goz Chambers Lawyers, being Mr Adekoya’s legal representatives in the present application), inviting a response including any information relating to the circumstances specified in s 501(6)(b)(i) and (ii) of the Act.[6] A detailed response was given. On 8 April 2016 a new Notice of Intention to Consider Refusal of a visa was sent to Mr Nwankwo, inviting a response including any information relating to the circumstances specified in s 501(6)(ba)(iii) of the Act.[7] A detailed response was provided on 4 May 2016.
[6] See paragraph [16(c)].
[7] See paragraph [16(b)] and G-Documents G8.
On 25 August 2016, a delegate of the Minister decided that Mr Adekoya had not passed the character test by virtue of s 501(6)(ba)(iii) and that under s 501(1) of the Act, Mr Adekoya’s application for the Partner (Provisional)(Class UF) visa was refused.[8] The Minister concluded that although he considered the likelihood of Mr Adekoya “re-engaging” in similar conduct was low, the Australian community would expect that a person who is reasonably suspected of committing crimes against humanity should not be granted a visa and that there were no countervailing considerations to outweigh the expectations of the Australian community.[9] After taking into account the relevant considerations, the Minister decided to exercise discretion under s 501(1) of the Act to refuse to grant the visa to Mr Adekoya.
[8] See G-Documents G3/19.
[9] See G-Documents G4/22.
On 21 September 2016 the Applicant applied to this Tribunal for review of this decision.[10]
[10] See G-Documents G1.
ISSUES
The issues for this Tribunal to consider are:
(a)Whether the Applicant passes the character test as defined in s 501(6) of the Act; and
(b)If not, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the visa to Mr Adekoya.
THE LEGISLATIVE FRAMEWORK
The character test under s 501(6) of the Act
In this application, it is necessary for the Tribunal to make a determination as to whether Mr Adekoya passes the “character test” under s 501(6) of the Act.
Section 501(6) of the Act prescribes specific circumstances in subsections (aa) to (h). If any one of those specific circumstances applies to a person, they will not pass the character test. If those specified circumstances do not apply, the person is taken to have passed the character test under s 501(6), in which s 501(1) will not apply to them. The prescribed circumstances of potential relevance to this application include:
(a)As specified in subsection 501(6)(b) of the Act:
The Minister reasonably suspects:
(i)That the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii)That the group, organisation or person has been or is involved in criminal conduct.
(b)As specified in subsection 501(6)(ba) of the Act:
The Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
…
(iii) The crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
Whether or not the person, or another person, has been convicted of an offence constituted by the conduct.
(c)As specified in subsection 501(6)(c) of the Act:
Having regard to either or both of the following:
(i) the person’s past or present criminal conduct;
(ii) the person’s past or present general conduct;
The person is not of good character.
(d)As specified in subsection 501(6)(d) of the Act:
In the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Discretion to refuse visa under s 501(1) enlivened if visa applicant does not pass the character test
In circumstances where a visa applicant does not pass the character test under s 501(6) of the Act, the determinative issue becomes whether the decision maker should exercise discretion under s 501(1) of the Act to refuse the visa.
In considering whether to exercise discretion under s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 – Migration Act 1958 Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (“Direction”). The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
... a decision maker must take into account the considerations in Part A or Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa.
The Direction requires that any exercise of discretion under s 501(1) is to be informed by the Principles in paragraph 6.3.They are summarised as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2) The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any future risk of similar conduct in the future is unacceptable;
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides three primary considerations that the Tribunal must take into account:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that a decision-maker must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account for visa refusal matters are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims; and
(d) Impact on Australian business interests.
EVIDENCE
Previous statements made by Mr Adekoya
On 10 May 2002, in support of his protection visa application at that time, Mr Adekoya made the following statements in a Statutory Declaration signed by him in the presence of Mr Nwankwo:
1.I am a Nigerian national of Yoruba ethnicity.
2.I am a Christian by birth and was an active member of the Odua People’s Congress (OPC). The OPC came into being as a result of continuos(sic) abuse of Yorubas living in Hausa dominated areas by the Hausas and the refusal by the authorities to stop the abuse. It is a free organization for all Yoruba indigenes. Before the OPC was established, any Hausa man could rape a Yoruba woman or even kill a Yoruba with impunity.
3.I escaped from Nigeria to South Africa in 2000 to avoid persecution from the brutal authorities in that country due to my membership of the OPC, and my participation in several protests since the dawn of the OPC.
4.At all times during my participation in OPC activities, my main duty was to monitor certain individuals presumed to be police informants. These informants were responsible for passing onto police the minutes of our secrete(sic) meetings. Armed with the information, the police who were mainly the Hausa ethnicity would launch serious assaults and arbitrary arrests of OPC members. In most cases some active members would be found dead in mysterious circumstances.
5.In 2000, my superiors instructed two selected members including myself to monitor the movements of a certain suspected member, Mr Adewosi, whom we found out was not a true Yoruba man. We noticed that he gave us wrong name and home address and that he was actually a member of the Nigerian State Security Service (SSS). One evening we traced him to his house where he lived with his wife and four children. When we knocked on his door his wife opened the door and asked who we were. We introduced ourselves as her husband’s friends. She told us to wait: after about five minutes she came back and told us that she was not married and was living alone in the flat. We did not want to create a scene so we left.
6.About three days after our visit to Mr Adewosi’s house there was a clash between the OPC and the Nigerian police who tried to stop OPC meeting in Lagos. More than hundred OPC members were shot dead by combined military and police forces. As a result of the killings, OPC members went on rampage destroying houses owned by some Hausa’s in Lagos. In the process, Mr Adewosi’s house was burnt with his wife and children.
7.After the incident, police started looking for me and the other two members who visited Mr Adewosi’s house. One of us was tracked to his village in Ogun and shot dead in front of his parents.
8.As the news spread I contacted the other man who visited Mr Adewosi’s house with me and told him that it was better for us to leave Nigeria. In the evening we managed to cross into Cameroon from where we boarded a Ship to South Africa where we sought refuge until July/August 2001 when the South African government signed a secrete(sic) deal to deport all Nigerians in South Africa who were involved in political and ethnic unrests. When it came to our knowledge that the South African government was deporting Nigerians, in particular OPC members to face charges in Nigeria, I escaped to Singapore where I met a Nigerian who told me to come back to Nigeria in November 2001. Within a week of my arrival, police visited our house twice looking for me. At that point I realised that my life was still in danger and managed to escape back to South Africa. On arrival, a police officer at the Airport asked me where I was going to stay in South Africa I told him that I was married to a South African and was going to stay with her. He then took the address and allowed me in.
9.When I arrived at wife’s house in the night I realised that she was no longer their(sic). Upon investigation, I found that she had remarried to another man and escaped to Zimbabwe.
10.To avoid being deported to Nigeria where I would certainly be killed, I decided to apply to come to Australia and seek refuge. There is no doubt that the authorities in South Africa would have sent me back to Nigeria where I would face persecution for my participation in OPC activities.
On 20 May 2002, Mr Adekoya made the following statement and provided the following information to the Department as part of his application for the protection visa:
(a)Mr Adekoya was asked whether he had ever travelled outside his home country or country of residence before his current journey to Australia to which he provided the following details:
Departure Date
Country
Arrival Date
Country
Purpose of Travel
16/06/00
Nigeria
18/09/00
South Africa
Escape
12/08/01
South Africa
15/08/01
Singapore
Visit
19/10/01
South Africa
30/11/01
Nigeria
Return
12/05/02
South Africa
13/05/02
Australia
(b)When Mr Adekoya was asked to state why he left Nigeria, he responded as follows:
As stated in the attached Statutory Declaration I left Nigeria to avoid be(sic) killed by the authorities who are after me.
Please refer to my statutory declaration for full details.
(c)When he was asked what would happen to him if he went back to Nigeria, Mr Adekoya stated:
If I go back to Nigeria I will certainly be killed. There is no question about that.
(d)When asked who he thought might harm him if he went back to Nigeria, Mr Adekoya responded:
I think that the authorities in Nigeria are the people who will harm. If they went to the extent of signing a secret deal with the South African government to deport OPC members, then it is a serious matter.
(e)When asked why he thought this would happen to him, Mr Adekoya responded:
This will happen to me simply because I was actively involved with OPC. And during a protest by OPC many people died including the wife and children of one police officer when we visited his house to prove he was not a true member of OPC.
(f)Mr Adekoya stated that he left Nigeria illegally by crossing the border into Cameroon.
Further statements made by Mr Adekoya in an interview at the Department’s office on 17 June 2002 as referenced in a “Protection Visa (Class XA) Decision Record” issued by a delegate of the Minister on 5 August 2002 are set out below:[11]
[11] Refer SG-Documents SG4/29.
I joined the OPC as a member in 1996, which was the year that the OPC started. I was promoted to be an officer in June 1997. You have to be a strong leader to be promoted to an officer of the OPC and it is difficult; you must be able to bear all the consequences and risks because during the protests there will be shooting. I was one of the first 10 members of the OPC in my home state.
I supported the OPC financially and morally and gave advice to village elders and also asked them what they wanted us to do. We also organised rallies and protests and I led several rallies.
When you join the OPC you make a pledge to fight for the Yoruba people and also promise not to leak secret information; you don’t have to promise that you will be in the OPC forever.
The main goal of the OPC is to stop the army and police, which is dominated by the Hausa. We want Yorubas to be liberated and free. I am not scared to fight for the Yoruba people. I was a publicity secretary within the OPC, because I am an independent man and I am not afraid to talk publicly.
I was appointed with 2 other OPC members to monitor an OPC member called Mr Adewosi. We began to suspect he was an informant to the authorities because he could not finish Yoruba parables and he did not have the proper scarring of a Yoruba man.
The first time we went to Mr Adewosi’s home was when one weekend we followed him to a place where he was living with his wife and kids and we saw his family welcome him and treat him like a father. We then went and asked some neighbours about Mr Adewosi and they said he lives next door and he is an(sic) SSS member. We couldn’t believe our ears; we went back to our colleagues and told them this and they said he has to be eliminated otherwise every time we have a meeting there will be killing. I won’t lie. I led the group to kill him with his wife and kids, we set the place to blazes. We made the decision in secret that we are going to get rid of all suspected members. The Hausa don’t care about the Yoruba so why should we care about them.
The second time we went to Mr Adewosi’s home we knocked on the door and a woman came to the door and asked us to wait; she came back and said there is no Mr Adewosi living here, I am alone here; she was lying and it was glaring. We knocked on the door because we wanted to be sure that Mr Adewosi was staying in the home.
The third time we went to Mr Adewosi’s home there were several protests going on between us (OPC) and the police. We were protesting to say this is what we want for the Yoruba people. We had made the decision before the protest that we wanted to get rid of Mr Adewosi and the other informants.
We went to Mr Adewosi’s home and told him to come out and face the public, now that we knew he was an informant, and we warned him that the house would be burned down if he didn’t come out. So poured petrol and we burned the house down with him and his wife and 4 kids inside the house. We knew they were in there because we pushed the buzzer and we heard him saying ‘tell them I’m not in’. We warned him that if he didn’t come out we will burn the house. I won’t lie, I led the burning, I poured on the petrol and put matches on myself. We heard crying and weeping but they didn’t come out and by that time the military came, the place was already turning to ashes and we escaped.
I have been involved in many many protests, all over Nigeria. I have participated in many actions where houses were burned down, but I didn’t lead these. I can’t even say how many. We wouldn’t know if people were in these houses or not, sometimes we would burn houses during the night and sometimes during the day.
After the protest during which we burned down Mr Adewosi’s home, the police came to my home looking for me but I wasn’t there, but my father was. When I returned (from another state) I discovered that the police had come to my home and shot my father during an interrogation. One of the other OPC members involved in the action against Mr Adewosi had already been killed and I knew that I would be the next victim.
That was when I escaped to Cameroon, I did not need a passport to do this. We drove during the night Cameroon and then boarded a boat for South Africa. Another OPC member arranged this for us. We travelled down the coast and the boat trip took about 1 month; we stopped at several places but we didn’t get off the boat.
We arrived in South Africa, at a port which I later found out was Durban. I met and married a woman in South African(sic) but I later discovered that she had a secret lover and she married this man.
I travelled from South Africa to Singapore on two occasions and on the second occasion a Nigerian friend told me that it was now safe for me to return to Nigeria; he probably said this because a Yoruba man was now President of Nigeria.
I returned to Nigeria on two occasions in late 2001. The first time I stayed in my village and did not go anywhere. On the second occasion I went around to catch up with OPC colleagues and by the second day I was there(sic) the news that I was home had spread. The police/army came to my home at midnight, but not as the authorities, they came as robbers, and they robbed me and warned me to go back to where I had come from. I spent only 5 days in Nigeria and ten (sic) returned to South Africa. The South African government had agreed to deport all Nigerian OPC members in South Africa back to Nigeria therefore I could not stay in South Africa. I applied for a visa to come to Australia so that I could seek refuge in Australia.
Mr Adekoya was interviewed at the Australian High Commission at Pretoria in South Africa on 9 February 2005.[12] At the start of this interview, Mr Adekoya was counseled regarding the implications of giving false and misleading information and he confirmed that he understood this. During this interview, Mr Adekoya stated as follows:
[12] Refer G-Documents G31.
(a)He was in South Africa on a visitor visa and was not working. He said he had always been lawfully present in South Africa but later in the same interview, claimed as follows: “I entered from a ship from Cameroon and had no visa, because I was seeking for a refugee status”. When asked why he made those two inconsistent statements, Mr Adekoya said he did not know. Mr Adekoya was warned again about the repercussions of making false and misleading statements in the interview.
(b)Mr Adekoya applied for the [Australian] visitor visa in 2002 and the reason for doing so was to “see education prospects for my children and to find a better living”. When asked whether he applied for the visitor visa with the intention to apply for a protection visa, Mr Adekoya responded: “Yes but I did not declare this”. When asked why he did not apply for a refugee visa from overseas, he said that he did not understand that he could do that. He confirmed that it was not his intention to just visit Australia but that he wanted to “find a better life because I was fed up of Africa”.[13]
[13] Refer G-Documents G31/176.
(c)When asked about the reasons for his claims for a protection visa, Mr Adekoya stated as follows:
When I was in Nigeria, I belonged to the OPC (Odua(sic) Peoples Congress). I was a minor member. I was attending rallies in Lagos and other places and another man in our group was an informant that he must come out. My group poured petrol on him and his house was burnt. There was a door in the back of the house and the family escaped. No-one was killed but because I am an OPC member I had a fear that they would be looking for me so I escaped to Cameroon then came to South Africa.
(d)Mr Adekoya subsequently, in the same interview, denied saying that petrol had been poured on the informant.
(e)When asked whether Mr Adekoya was involved in the burning of the house, he responded “I was present but not involved”.
(f)When asked whether he had a fear (at that time) of going back to Nigeria, Mr Adekoya responded: “I heard in Singapore that no-one got burnt or killed so I was told it was OK to go back. I went back in 2000 for about 3 or 4 days”.
(g)Mr Adekoya stated that he got married to a South African citizen in South Africa as he “wanted to start a new life”. He said that he applied for permanent residency in South Africa on the basis of his marriage to his wife at that time. He said his wife did not attend the interview with the South African immigration officials, so his application was “cancelled”. Mr Adekoya denied using his South African wife to obtain residency in South Africa and said: “Because I was getting older, I felt I needed to be married and settle down”. He subsequently applied for a work permit and this was granted on the basis of his indication that he had registered a business in South Africa. He said that his South African wife’s parents did not approve of their daughter’s marriage to a “foreigner” so they “gave her to a Zulu man and they left for Zimbabwe”.
(h)At one stage of the interview, the following exchange took place:
Have you been involved in any political parties or had political associations? No.
What about OPC? This is a tribal union.
No other political affiliations or associations? No.
Have you been involved in any form of criminal activity? Yes, the rally in Nigeria I mentioned previously.
Any other criminal activity? No.
What about illegally travelling to South Africa using people smugglers? You don’t consider that criminal activity? I didn’t know it was illegal at the time.
Do you have any criminal convictions in any country in the world? NO.
Do you have legal proceedings in any country in the world that may lead to a criminal conviction? No.
Ever tortured anyone? No.
Ever murdered anyone? No.
Ever witnesses torture or murder? No. I did not see the people face-to-fact(sic) during the rally in Nigeria.
This office has information that leads us to suspect that you were involved in crimes against humanity. Comment? I don’t know what you mean sir.
Why was your protection visa application refused? They said I was engaged in a rally that involved the burning of a house and the burning of people. I never killed anyone in my life. Since then I have never joined any tribal or political party because I know it is just a big mistake.
What would you do if the visa application is refused? We will be devastated. I won’t be happy and I am sure my wife will be devastated and unhappy. I am sure she will appeal the case until we can be united together.
On 29 July 2014, Mr Adekoya in a Statutory Declaration signed by him, stated the following:[14]
…
15. It was during this period that a friend referred us to another migration agent who advised that I should withdraw my application with the AAT and apply for a spouse visa offshore. I was relieved about the advice to withdraw the AAT application because I was not comfortable in proceeding with the claim because I knew that I had grossly over exaggerated my involvement with the Odua People’s Congress (“OPC”).
16. Based on my agent’s advice, I withdrew my AAT review application and departed Australia on 17 March 2004, to lodge my spouse application in South Africa.
17. Unfortunately my agent did not caution me about the consequences of not clearing my name with the AAT before departing from Australia to lodge my spouse application offshore. If I had known about the effects of making such exaggerated claims about my involvement with the OPC, I would have cleared my name before departing Australia. I would have prepared a submission to the AAT to the effect that my involvement with OPC was simply by default of me being a young Yoruba male which was traditionally mandatory in those days. I would have equally provided verifiable evidence from the OPC hierarchy at the time confirming that I was a ‘non entity’ with the organization.
18. As stated above, I admit making claims in the application that I was an active member of [OPC]. I further admit that I claimed in my said application that I actively participated in OPC activities in Lagos in which houses were burnt down.
19. However, I honestly declare that the claims were simply exaggerated in order to impress my case officer. It was a case of a ‘desperate person doing desperate things to survive’. I say that I have never been involved in any violent activity in my life talk less of burning down someone’s house. I willingly consent that the Department conduct all methods of investigation about me for the purpose of determining whether I have any criminal record either in Nigeria, South Africa or Australia.
20. I can say further that although there are bad elements within the OPC as ? in any organization of youths, the OPC is not perceived by the Nigerian law enforcement authorities as a criminal organization. In fact, members of the OPC are today being paid complimentary salary by the Lagos State government.
…
[14] Refer G-Documents G16.
Further, in a letter dated 4 May 2016 authored by Mr Nwankwo, Mr Adekoya claimed to be a member of the OPC and participated in some of its activities, “in the hope that his case officer would be reluctant to send him back to Nigeria”.[15] It is also stated in this letter that “There is no country information to suggest that buildings were burnt down in Lagos or any other part of Nigeria at the time and place referred to in the Applicant’s application for a protection visa” and “more importantly OPC is now classified as a lawful civil defence group by law enforcement authorities in Nigeria..”.
[15] Refer G-Documents G17/95.
Previous statements made by Mrs Adekoya
During an interview conducted by an officer of the Department on 14 April 2005, Mrs Adekoya made the following statements:
(a)Mrs Adekoya has lived in a flat in Heidelberg Heights with her mother since March 2004.
(b)Mr Adekoya went to South Africa from Nigeria “to get a better job and better life and things were tough in Nigeria”.
(c)Mr Adekoya has not sent money. She has not supported Mr Adekoya “since last year” as his “children support him”.
(d)Mrs Adekoya called Mr Adekoya every day and he called her every second day.
(e)To her knowledge Mr Adekoya has been married once previously in South Africa. When asked why it ended, Mrs Adekoya responded: “It just dissolved. She was supposed to be married to someone else and her parents found out. After that things went bad”.
(f)When asked whether she had spoken to Mr Adekoya’s adult children (aged 21 and 23 years at the time of the interview) from Nigeria, Mrs Adekoya confirmed that she had done so and that “eventually they will come out to Australia but not yet”.
(g)In relation to the visa, the following exchange with Mrs Adekoya and the interviewer took place:
Did [Mr Adekoya] lodge an application when in Australia previously? Yes. He told me he had a working visa and then bridging visa.
Do you know what that was for? He is at the tribunal at the moment for a visa for protection from Nigerian government. He was told to say he killed some people but he didn’t do anything.
When did he tell you this? After we got together – later into the relationship. When we first met all I knew was that he was on a working visa.
Try and remember when. Had his application been refused? A few months after we met – I can’t really remember. All he told me was that he never hurt anyone. That’s all he told me. He didn’t tell me what was in the application only about what was happening. All he told me was that the application was currently at the tribunal. To get protection he was suppose(sic) to say he killed people. He was told that after he put the application in. The agent then told him what he wrote.
Who told him? Another solicitor told him to say that. Who? I don’t know. The application was lodged and then he told him about the claim.
(h)Mrs Adekoya would be devastated if the visa application was refused but she would “re-apply for him”. She said “I just want him to come home soon because I need him badly. He is my sole(sic) mate and the little one needs his father so much. I just want him to come back so badly”.
Mrs Adekoya authored an open letter which appears to have been written on or shortly before 30 July 2015.[16] In this letter, Mrs Adekoya states:
(a)Mrs Adekoya had experienced a lot of challenges raising her two sons over the last 11 years.
(b)Her eldest son was born four weeks premature and both Mrs Adekoya and her eldest son “nearly lost their lives”.
(c)Her youngest son was born with craniosynostosis.[17] He had limited hearing which was diagnosed at six weeks old. Mrs Adekoya gave evidence that her son’s hearing was tested again recently and it was assessed as normal. Two major operations were performed on her son’s skull to correct the craniosynostosis at 7 months and 17 months of age.
(d)Her youngest son had suffered from bronchiolitis at two months of age and he been hospitalised twice for this condition.
(e)Her youngest son also had his tonsils and adenoids removed at two years and four months of age at which time they “nearly lost him”.
(f)Her youngest son had been diagnosed with “global learning delay” and that he was not at [in July 2015] talking or toilet trained. At the hearing, Mrs Adekoya said that he was now receiving support under a National Disability Insurance Scheme (NDIS) plan.
(g)Mrs Adekoya expressed in her letter that she was “on the verge of a nervous breakdown” and said that he had been in two car accidents in the previous 12 month period.
[16] Refer G-Documents G18.
[17] Craniosynostosis is a condition in which the fibrous sutures in an infant skull prematurely fuses, thereby changing the growth pattern of the skull.
Medical records in relation to Mr and Mrs Adekoya’s youngest son
Mr and Mrs Adekoya’s youngest son’s medical history is set out in a document signed by Dr Carol Chaivachirasak, Livingstone Street Clinic, Ivanhoe, entitled “Limited Patient History” as at 28 July 2015. The “Past Medical History” is recorded as follows:
Date Condition – Comment
Craniosynostosis
Intellectual disability
Saethre-Chotzen Syndrome
Craniosyntosis, webbing of digits,
2011 Hearing – Impaired
failed hearing test – attends RCH
frontal fontanelle close – elongated skull
closed at 7-8 weeks
attends RCH
15 February 2012 Posterior vault decompression and cranial distractors
12 April 2012 Removal of cranial distractors
19 December 2012 Bifronto orbital advancement
23 October 2013 Tonsillectomy/Adenidectomy
18 September 2014 Asthma
18 September 2014 Eszema
Dr Sue Gibb, consultant paediatrician, at the Royal Children’s Hospital, stated as follows in a letter “in support of” Mr Adekoya’s visa application dated 23 February 2016:
…
[The child] has significant developmental disability in relation to a congenital syndrome known as Saethre-Chotzen, a syndrome associated with craniosynostosis and developmental disability.
[The child] has global developmental disability and significant communication delays. He requires ongoing support at kindergarten and will require ongoing medical management of his craniosynostosis. He is required to attend regular monitoring appointments and has ongoing investigations.
…
Police checks and other miscellaneous documentary evidence
The documentary evidence lodged in this application included the following:
(a)Police Character Certificates issued by The Nigerian Police on 24 August 2012, 30 October 2014, 11 January 2016 and 30 March 2017 certifying that according to the Criminal Records of the Nigerian Police Force there was no trace of any convictions recorded against Mr Adekoya;[18]
(b)Clearance Certificate issued by the South African Police Service on 20 October 2014 and 25 January 2016 to certify that no convictions had been recorded for any crime in the Republic of South Africa against Mr Adekoya;[19]
(c)National Police Certificate issued by the Australian Federal Police on 23 June 2015 to certify that there were no disclosable court outcomes recorded against Mr Adekoya in the records of the Australian Federal Police and the Police in all Australian States and Territories as at 23 June 2015.[20]
[18] See G-Documents G30/165, G10, G11 and Doc 1 of the Applicant’s Supplementary Documents.
[19] See G-Documents G12 and G13.
[20] See G-Documents G14.
On 15 June 2017 (the day before the hearing of this application), Mr Adekoya’s legal representative lodged a document which on the face of it appears to be a photocopy of an open letter by Comrade Sarafadeen A.A., Co-ordinator Ojagbo Zone, Ibadan, Oyo State Nigeria, dated 11 April 2017 which states as follows:
TO WHOM IT MAY CONCERN
This letter serves to confirm that Mr. Sammy Abiodun Adekoya, passport holder number A04902148 Born in Ibadan, Oyo State of Nigeria on 1st January 1960 is not a member of OPC and has never under any circumstances been involved with any activities of this organization.
Be rest assured that a thorough investigation was done, our record was reassessed and archives was checked, his name was never found on our list.
War Crimes Assessment
A report dated 11 February 2009 was issued by the Department which records a “War Crimes Screening Assessment” undertaken in relation to Mr Adekoya.[21] The recorded Assessment of Mr Adekoya is set out below:
[21] Refer G-Documents G9.
…
From the above analysis it is reasonable to suspect that Mr ADEKOYA was involved in the commission of human rights violations in Nigeria and shared the purpose and objectives of an organisation known to have committed human right abuses. This is evidenced in his [protection visa] application where he claimed that he had been active in the OPC in Nigeria.
Mr ADEKOYA joined this organisation voluntarily, reportedly rose to a leading position in the organisation and actively participated in its activities from 1996 until 2000.
It is clear from Mr ADEKOYA’s statement to the department on 17 June 2002, that the applicant was directly responsible for setting on fire a house, with the intention of killing its occupants, which not only included the suspected police informant, but also his wife and four children. The applicant knew that the suspected police informant (Mr Adewosi) and his entire family were in the house when Mr ADEKOYA’s(sic) set it ablaze.
The applicant stated that he heard screaming from inside the house, that the house was reduced to ashes and all the occupants perished in the fire. The applicant further told the interviewer in 2002 that he was involved in many actions where houses were burned down, but that he did not lead these; the applicant stated that they did not know if there were people inside at these times or not.
Mr ADEKOYA retracted this statement in 2008 regarding his involvement in the burning of the house and its occupants. Even if it is accepted that he was not involved in the above mentioned incident, Mr ADEKOYA continued his membership with an organisation reported to have been involved in crimes against humanity and as such, shared a common purpose with that organisation.
Furthermore, even though, Mr ADEKOYA retracted his statement in 2008 to the department concerning the role of the OPC and his role within the OPC, Mr ADEKOYA’s credibility is questionable, as Human Rights Watch (2003) describe the organisation as responsible for numerous acts of violence and that its members have killed or injured hundreds of people and that they used a variety of weapons, including fire-arms, machetes, cutlasses, knives and daggers.
Mr ADEKOYA admits that he had an ongoing association with an organisation that has been reported to be involved in criminal conduct, including human rights abuses, and that he only disassociated from the organisation through concern over his own safety. In Mr ADEKOYA’s statement to the department on 17 June 2002, he said he was aware that the South African government had agreed to deport all Nigerian OPC members in South Africa to Nigeria and that is why he applied for a visa to come to Australia. This action also suggests that Mr ADEKOYA was aware of the criticism surrounding the organisation.
From the above analysis it is reasonable to suspect that Mr ADEKOYA has been involved in the commission of crimes against humanity as defined in the Rome Statute of the International Criminal Court and complicit through his association with a violent organisation involved in crimes against humanity.
In 2014, it is apparent that consideration was given as to whether a further war crimes assessment of Mr Adekoya should take place. The Assistant Director of the War Crimes Unit of the Department recorded the following in her Minute of advice dated 13 November 2014:
…
7. In response to his Notice of Intention to Refuse dated 10 September 2009, Mr Adekoya stated that “his motivation for making the assertions which led to the suspicion by the Department’s War Crimes Unit that he may have been involved in commission of crimes against humanity was neither because the assertion was true nor due to any general criminal intent or contempt for international humanitarian law, but rather by his abiding desire to be able to remain in Australia (being a better country than his country of birth, Nigeria) and to be able to have the opportunity to be a lawful participant in the social and economic opportunities Australia offers.
8. Notwithstanding the response to the NOICR by Mr Adekoya, the WCU continues to note that he was a member of the OPC; should have been aware of the widespread reports of the OPC committing human rights abuses and; admitted to burning down a house with civilians (including children) inside. It should also be noted that Mr Adekoya was refused a [protection visa] based on serious concerns of involvement in war crimes.
Conclusion:
9. Given the lack of any significant new information, we do not believe a new War Crimes Assessment is required. The delegate or decision maker considering visa refusal for Mr Adekoya can therefore rely on the information contained in the War Crimes Assessment dated 11 February 2009.
Statements of support made by other Australian citizens
Ms Shirley Scott of Torquay, Victoria, Australian citizen, signed a Statutory Declaration on 1 April 2013 indicating that she has had a continuous relationship with Mrs Adekoya but not Mr Adekoya, although she had met him and that “I sincerely believe the partner of the applicant is in need of genuine support in the care of health and education of their 2 sons, Caleb 8 yrs, Joshua 21 months and support is needed”.[22]
[22] Refer G-Documents G30.
Francis Awopegba, registered nurse, friend of Mr Adekoya and Australian citizen and subsequently, known to Mrs Adekoya, in a Statutory Declaration signed on 29 April 2013, stated as follows:[23]
There is no doubt that their relationship is genuine because despite the fact that [Mr Adekoya’s] previous spouse application was not approved, they have always been in contact and they have had two male kids between that time that is 2004 – 2011. [Mrs Adekoya] visits [Mr Adekoya] in South Africa every year with the kids and they talk everyday and hope that one day they will be together to look after their two boys together here in Australia. They are very committed couple.
…
[23] Refer G-Documents G30.
Kayode Lawal, friend of Mr Adekoya and Australian citizen, of Werribee, Victoria, in a Statutory Declaration signed on 3 May 2013, stated as follows:[24]
I believe their marriage is genuine and continuing. I witness their marriage in north corte (sic) on 7/05/2003. When their first son Caleb was born on 7/7/2003 I was there and do go to visit nadine in their home. I am always aware when she goes to visit sammy in South Africa. Sammy and I always talk on phone and he do ask me to go and visit nadine. Sammy and Nadine Love each other.
[24] Refer G-Documents G30.
Toyin Abbas, friends of Mr Adekoya and Mrs Adekoya and Australian citizen, of Roxburgh Park, Victoria, in a Statutory Declaration signed on 16 April 2013, stated as follows:[25]
I strongly believe that the relations is genuine and continuing as demonstrated by the unflinching (?) love and support by the couple. In addition, they are blessed with 2 beautiful kids an indication of a fruitful marriage and continuity.
[25] Refer G-Documents G30.
CONSIDERATION - ISSUE 1: CHARACTER TEST
Section 501(1) of the Act provides that a non-citizen may be refused a visa if they do not satisfy the decision maker that they pass the character test. In this application, the Tribunal must determine whether Mr Adekoya passes the character test as defined in s 501(6) of the Act based on whether any of the specific circumstances prescribed in subsections (aa) to (h) of this provision applied to him. As mentioned above, the Tribunal considers that the specific circumstances set out in subsections 501(6)(b), (ba), (c) and (d) of this provision potentially apply to Mr Adekoya and for that reason, it will examine each of these in turn.
The Minister focused specifically on subsection 501(6)(ba)(iii) of the Act and contended that the Tribunal was able to conclude that it reasonably suspects that Mr Adekoya has been involved in conduct constituting a “crime against humanity” or a “war crime”. The Tribunal notes this contention but does not regard itself as confined to consider only those particular parts of subsection 501(6)(ba)(iii) or this subsection of s 501(6) generally.
The general concept “reasonable suspicion” as relevant to subsections 501(6)(ba) and 501(6)(b) of the Act
As a preliminary matter, both subsections 501(6)(b) and (ba) incorporate the concept of “reasonable suspicion”. For the purpose of applying subsection 501(6)(b), subclause 3(2) of Section 2 of Annexure A of the Direction provides as follows:
(2) A suspicion is less than a certainty or a belief, but more than a speculation or idle wondering. For a suspicion to be reasonable, it should be:
(a) a suspicion that a reasonable person could hold in the particular circumstances; and
(b) based on an objective consideration of relevant material.
In Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774, Justice Lee of the Federal Court of Australia made some observations about this concept, when applying certain provisions in the character test under s 501(6) (emphasis added):
[47]…First the Minister must form a reasonable suspicion that a person, group or organisation has been or is involved in criminal conduct. It may be taken that to be a reasonable suspicion the suspicion must be based on reasonable grounds. Second the Minister must make a finding of fact that the visa applicant has, or has had, an association with that person, group or organisation. Again it would be necessary for there to be material capable of supporting that finding. It is unnecessary to consider the meaning of the word “association” but for a visa applicant not to pass the character test it may be taken to require the Minister to make relevant findings of fact as to the knowledge, or awareness, by the visa applicant of the facts that point to the involvement of the person, group or organisation in criminal conduct.
In Queensland Bacon Pty Ltd v Rees [1965-1966] 115 CLR 266, Justice Kitto of the High Court of Australia at page 303 considered the meaning of the concept of “reason to suspect” and made the following observations (emphasis added):
…
In the first place, the precise force of the word “suspect” needs to be noticed. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”, as Chamber’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which “reason to suspect” expresses in sub-s (4) is, in the mind of a reasonable person in the position of the payee an actual apprehension of fear that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.
Do the circumstances set out in s 501(6)(b) apply?
The Tribunal must determine whether there are reasonable grounds to form a reasonable suspicion that Mr Adekoya has been or is a member of the OPC, or has had or has an association with the OPC or a person and that the OPC or that person has been or is involved in criminal conduct. The Tribunal has taken into account the matters set out in clause 3 of Section 2 of Annexure A to the Direction. In particular, subclause 3(4) provides that, “in order for a person to fail the association limb of the character test, the delegate must have a reasonable suspicion that the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation – mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association”.
The Tribunal considers that there are reasonable grounds upon which it may form a reasonable suspicion under s 501(6)(b) as set out below:
(a)There was widespread reporting of repeated and serious criminal conduct by the OPC by its members, particularly from 1999 to the election in 2003, comprised injuring and killing of Hausa people and Nigerian police officers. The evidence which supports this includes the following country information contained in:
(i)A report issued by Human Rights Watch in February 2003 entitled “The O’Odua People’s Congress – Fighting Violence with Violence”:[26]
[26] This report forms Exhibit “A2” in this application. At page 3 of the report, the background to this report is explained as follows: The information in this report is based in large part on research conducted by Human Rights Watch in Nigeria between May and September 2002…[the] researchers interviewed a wide range of people in Nigeria, including victims and eye-witnesses of OPC violence from different ethnic groups, current and former members of the OPC (including their leaders and rank-and-file members), sympathizers and critics of the OPC, police and government officials, non-governmental organizations and other sources…The report concentrates on events which took place since the present government of Nigeria came to power in May 1999. However, there were also serious incidents of violence both by and against members of the OPC in previous years, which are not documented in this report.
(Page 1) Nigeria has witnessed an increase in the activities of ethnic and regional militia, vigilantes, and other armed groups in the last few years. One of the better-known of these groups is the O’odua People’s Congress (OPC), an organization active in the southwest of Nigeria which campaigns to protect the interests of the Yoruba ethnic group and seeks autonomy for the Yoruba people.
…
Its activities have ranged from political agitation for Yoruba autonomy and promotion of Yoruba culture to violent confrontation with members of other ethnic groups, and, more recently, vigilantism and crime-fighting. In its two main spheres of activity – ethnic militancy and vigilantism – the OPC has been responsible for numerous human rights abuses and acts of violence, and its members have killed or injured hundreds of unarmed civilians.
…
The most widespread killings by the OPC took place in the context of clashes between Yoruba and other ethnic groups, which reached a peak during 2000; however, violence and human rights abuses continued in 2001 and 2002. There have also been numerous individual cases in which OPC members have killed or injured people in the course of their vigilante work and in attempts to extort money. The OPC’s activities have led them into direct confrontation with the police: there have been repeated, violent clashes between the two, with causalities on both sides. OPC members have attacked police stations on many occasions, and have killed and injured several policemen.
…
In addition, OPC members frequently carry out acts of intimidation and violence which appear to be motivated more by a desire to rob their victims of money or possessions, than by any ideological objective.
…
(Page 9) … A specific section of the OPC began to take charge of security and vigilante activities. When they caught suspected criminals, they often handed out instant justice, killing them summarily on the spot. Such cases were particularly common in 2000 and 2001.
…
(Page 10) … The OPC has been responsible for numerous acts of violence and its members have killed or injured hundreds of people. While many of their most serious attacks were directed against Hausa, or people suspected to be northerners, their victims have also included Igbo, Ijaw and people from other ethnic groups. There have even been cases where they have attacked Yoruba, both civilians and policemen. Most of their victims have been men.
Numerous eye-witness testimonies gathered by Human Rights Watch confirmed that contrary to their leaders’ denials, the OPC have used a variety of weapons, including fire-arms, machetes, cutlasses, knives and daggers, which they are often seen carrying openly. There have also been several cases where they have poured acid on their victims. Frequently they set fire to the corpses of those they had killed, sometimes after mutilating them …
…
(Page 11) By the time the violence reached its peak in the second half of 2000, hundreds of people had been killed, many by the OPC, others by other groups…[27]
…
(Page 30) The OPC have attacked and burned several police stations, sometimes in protest at the arrests of their members, and killed and injured policemen. OPC-police violence was particularly fierce in the period immediately preceding and following the 1999 elections … According to police sources, between 2000 and 2001, about eighteen policemen were either injured or died as OPC members poured acid on them; such cases were also common in 1999.
(ii)A report issued in January 2005 by the Danish Immigration Service in relation to a joint British-Danish fact-finding mission to Abuja and Lagos, Nigeria in October/November 2004 entitled “Report of human rights issues in Nigeria”:[28]
(Page 15) …[The Chief Administration Officer (Research), (Nigerian) National Human Rights Commission] … described the OPC as “a violent group and an authority in itself.” OPC is responsible for violent inter-ethnic clashes between Yoruba and Igbo/Hausa and the killing of members of NPF in and around Lagos. OPC is a strong group and it does not recognise the government or the authority of the police … (at page 16)... he considered that members of the [OPC] are responsible for serious crimes against civilians and they should under no circumstances be granted asylum in any country…
(b)As referenced in paragraphs [22] and [24], in mid-2002, Mr Adekoya made admissions that he joined as a member of the OPC in 1996 and was promoted to an officer in 1997. He claimed to be one of the first ten OPC members in his home state. He claimed to have had an active leadership role in the OPC and had led several rallies. He said his duty was to monitor certain individuals suspected to be informants. He acknowledged that the main goal of the OPC was to stop the Nigerian army and police, which were dominated by the Hausa and declared that he was not scared to fight for the Yoruba people. He claimed to have been involved in many actions involving the burning down of houses without knowing whether people were inside of them and he confessed to lighting the match which burnt down the house of a suspected police informant, Mr Adewosi, his wife and four children with the knowledge they were inside. He knew that the protests and these actions had taken place because “we wanted to get rid of” the informants.
(c)When reading the statements made as set out in [22] and [24], Mr Adekoya demonstrated a high degree of knowledge about the background, objectives and workings of the OPC and also about the events that took place during the OPC rallies and protests, that would not be expected of a person who had no connection whatsoever with the OPC as later claimed by Mr Adekoya. It appeared from his statements that he expressed strong support and sympathy for the plight of the Yoruba ethnic group, with respect to its treatment by the Hausa ethnic group, and consequently, the objectives of the OPC and the lengths at which it was prepared to go to in order to achieve those objectives;
(d)Even when Mr Adekoya subsequently sought to resile from his previous statements about his role in the burning of houses, including the house of Mr Adewosi and his family, and injuring and killing people during the protests and rallies, he initially did not completely divorce himself from an association with the OPC and its activities, which he was at liberty to do. Instead, he sought to “downgrade” his involvement with the OPC and his connection with the conduct, describing himself (see paragraph [25(c)]) as belonging to the OPC as a “minor member” and referring to having attended rallies and that his group had poured petrol on a suspected informant and his house and this person and his family escaped out the back door of the house (so no person was killed). Importantly, there was no reason (or purpose to be served) at that time for Mr Adekoya to fabricate those things. At that time, Mr Adekoya was no longer applying for a protection visa and instead, he had lodged and was applying for a partner visa where those matters would count against him. The fact that Mr Adekoya at this stage still admitted his involvement (albeit “downgraded”) with the OPC, was an important ground upon which the Tribunal formed a reasonable suspicion that Mr Adekoya was a member of and associated with the OPC.
[27] The report goes on to provide details in relation to a number of specific incidents including: (a) A major ethnic clash in Sagamu in which the OPC were reported as intervening, during which it was also reported that 68 people died including three boys between the ages of ten and fifteen; (b) A reported clash in mid-July 2000 between OPC and traders at Ketu/Mile 12 Market where it was estimated that more than one hundred were killed; (c) Two waves of clashes at Ajegunule in September/October 1999 at which it was reported that more than 40 people were killed in the first wave, and more than 250 people were killed in the second wave.
[28] Refer Exhibit “R1”.
At the hearing, Mr Adekoya contended that he was not a member of and had never been a member of the OPC nor had he ever killed or hurt anyone. In support of his contention, Mr Adekoya said:
(a)He does not have any recorded criminal convictions in Nigeria, South Africa or in Australia seeking to rely on the certificates referred to in paragraphs [32];
(b)He obtained a written letter (dated 15 June 2017) from the OPC confirming that he has never been a member of the OPC – see paragraph [33]; and
(c)The only reason he made those earlier statements about engaging in the conduct described in paragraph 51 above was to “impress his case officer” in order to secure a protection visa so he could remain in Australia. However, at the hearing, Mr Adekoya changed his explanation and said the reason he said those things was because he was “depressed and confused” at the time due to the death of his niece. Mrs Adekoya stated, at an interview with an officer of the Department in Pretoria, that Mr Adekoya had told her that he said those things because “his agent” had told him to. Mr Adekoya at the hearing gave evidence that his wife was a person who told the truth so he would accept as correct the evidence she gave at the hearing about what he told her about his reason for saying those things. However, Mr Adekoya gave evidence to the Tribunal at the hearing that his agent had not told him to say those things.
Since 2002, Mr Adekoya has repeatedly made inconsistent statements within statutory declarations or at formal interviews conducted by the Department or when giving evidence under oath at this Tribunal. He has shown a particular ease by which he will change his story or position (often to the polar opposite of his earlier story or position) so as to serve his interests as they may change over time. In short, the Tribunal is satisfied that Mr Adekoya will say whatever he has to say, to whomever, in order to get what he wants or to serve his interests. The Tribunal does not find Mr Adekoya to be a credible witness and does not accept that the letter purported to be a letter from the OPC, tendered in support of this application, is legitimate or that it was legitimately obtained. In addition, the Human Rights Watch report, at page 6 and 7 states that OPC claimed to have more than five million members of which one million were registered, card-carrying members of the OPC and the remaining are “sympathisers” who joined in OPC activities at various times. Even if the OPC letter was legitimate, it does not rule out that Mr Adekoya was one of the other four million OPC members who were not registered or card-carrying members.
Further, the Tribunal does not accept that the only reason he made those earlier statements was to impress his case officer or because he was depressed and confused on account of the death of his niece or because his agent told him to say those things. Instead, the Tribunal suspects there was some truth in what he said about his personal involvement in the OPC and the OPC rallies and protests in which he participated, which were widely reported to involve the infliction of violence by the OPC and its members on Nigerian citizens, informants and members of the police force.
The absence of a criminal record in Nigeria (or South Africa or Australia) does not detract from the Tribunal’s reasonable suspicion in relation to Mr Adekoya’s membership of and association with the OPC. The Nigerian country information reports referred to above indicate the presence of significant problems with the law enforcement function within Nigeria and for that reason, the Tribunal cannot draw any significant meaning from the fact that Mr Adekoya appears to have no criminal record in Nigeria. Mr Adekoya was only present for a short time in Australia so little can be drawn from the absence of any criminal record in Australia. The absence of a criminal record in South Africa, whilst acknowledged by the Tribunal, must be considered in light of the fact that Mr Adekoya was continually seeking visa renewals in that country and for this reason, like the case in Australia, it meant his engagement in any criminal conduct may have had serious repercussions for him in relation to those visa applications.
In conclusion, based on the reasonable grounds set out in paragraphs [46] and in consideration of the Tribunal’s rejection of Mr Adekoya’s contentions as set out in paragraph [47], for the reasons stated in paragraphs [48], [49] and [50], the Tribunal forms a reasonable suspicion because it has a positive feeling of actual apprehension that Mr Adekoya has been a member of and associated with the OPC and further, that the OPC is an organisation or group which has been involved in criminal conduct. Accordingly, the Tribunal is satisfied that the circumstances set out in s 501(6)(b) applied to Mr Adekoya and for this reason, he does not pass the character test under s 501(6) of the Act.
Do the circumstances set out in s 501(6)(ba) apply?
The Tribunal will deal with three separate aspects of this provision as it considers relevant to this application, namely, whether it reasonably suspects Mr Adekoya has been involved in conduct constituting: (a) a crime against humanity; (b) a war crime; or (c) the crime of genocide. The Tribunal has taken into account the matters set out in clause 4 of Section 2 of Annexure A of the Direction and in particular, subclauses 4(1)(c) and 4(2) providing that a person is not required to have been convicted of an offence constituted by the conduct in order to fail this limb of the character test.
A crime against humanity
Firstly, the Tribunal will consider whether there are reasonable grounds for it to form a reasonable suspicion that Mr Adekoya has been or is involved in conduct constituting “crimes against humanity”.
The Tribunal was invited by the Minister to proceed with this examination by reference to the definition of “crimes against humanity” in Article 7 of the Rome Statute. Support for this approach may be found in the Full Court of the Federal Court decision in SRYY v Minister for Immigration and Indigenous Affairs (2005) 220 ALR 394, in the context of considering an application for a protection visa, where it was held that reference should be made to Article 7 of the Rome Statute for the definition of “crimes against humanity”. This approach was also endorsed in the Full Court of the Federal Court of Australia decision in SZCWP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 9.
Relevantly, Article 7 provides as follows:
Crimes against humanity
1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
a. Murder;
…
h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
…
k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
(g) ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectively;
…
Mr Adekoya has made statements previously describing the events and incidents referred to below, to which he was either directly responsible for or involved in as part of his participation as a member and/or officer of the OPC:
(a)As set out in paragraph [24], Mr Adekoya said that he lit a match and burnt down a house (after he had poured petrol on it), with the knowledge that a person who he believed to be a police ‘informant’, Mr Adewosi, his wife and their four children, all remained inside. Mr Adekoya also said that he had heard weeping and crying after he had lit the house. No mention was made by Mr Adekoya that he did anything to stop the house from burning (once alight) or to rescue its occupants. Mr Adekoya’s stated that, “We made the decision in secret that we are going to get rid of all suspected members. The Hausa don’t care about the Yoruba so why should we care about them”. As set out in paragraph [22][29], Mr Adekoya also stated that this took place as part of a “rampage” by the OPC members “destroying houses owned by some Hausa’s in Lagos” following a clash between the OPC and Nigerian police who tried to stop OPC meetings in Lagos during which 100 OPC members were shot dead by combined military and police forces.
(b)As set out in paragraph [24], Mr Adekoya also stated that he had been “involved in many, many protests, all over Nigeria” and had “participated in many actions where houses were burned down” although he said he did not lead those. He said he could not say how many. He also said that “we wouldn’t know if people were in these houses or not, sometimes we would burn houses during the night and sometimes during the day”.
(c)Mr Adekoya also stated that he organised (and in several cases, led) rallies and protests. He said that he was promoted as an officer of the OPC and that “you had to be a strong leader to be promoted to an officer” and it was difficult. He stated that “during the protests there will be shootings”.[30]
[29] See clause 6 of Statutory Declaration quoted in paragraph [22].
[30] See paragraph [24].
If these instances of conduct described above occurred, they are each appropriately characterised as having been “committed as part of a widespread or systematic attack directed against any civilian population” – see preface to Article 7(1) of the Rome Statute. The particular civilian population in this case who were being targeted by the OPC, accordingly to Mr Adekoya’s earlier statements, were the ethnic group known as the Hausa, and more specifically, in relation to the conduct described in subparagraph [56(a)], a subgroup of Nigerian citizens known to be Hausa ‘informants’ who are believed to have assisted the Nigerian police and authorities by providing them with secret information relating to the OPC and its activities.
The Tribunal considers that the conduct described in subparagraph 56(a), if it occurred, is appropriately characterised as:
(a)“murder” under Article 7(1)(a);[31] and
(b)as “persecution” of the type described under Article 7(1)(h) (with the ‘informants’ being an “ethnic” group on account of their perceived actions in support of the Hausas); and
(c)as “any other inhumane act causing great suffering or serious injury to body or to mental or physical health” under Article 7(1)(k).
[31] Taking into account the guidance given to the meaning of “murder” as used in Article 7.1(a) as provided for in the Elements of Crime document adopted by the Assembly of State Parties at a meeting in New York in September 2002 as provided for under Article 9 of the Rome Statute.
It is not clear to the Tribunal that this was also the case with respect to the conduct described in subparagraphs [56(b)] and [56(c)], on account of the lack of detail about precisely what happened at those events and the extent to which Mr Adekoya was individually responsible, although it is noted that he has claimed to have led several of the OPC rallies and protests at which he also described there would be shootings. It is unclear though from his statements or any other information who was shot, injured or killed (and by whom) at those rallies, protests and other house burnings.
However despite Mr Adekoya’s earlier statements to the contrary, as detailed in paragraph [47], as part of this application he contended that he did not do those things and he repeatedly contended at the hearing that he “is not, and has never been, a member of the OPC”.
It is not necessary in this application for the Tribunal to be satisfied that there is sufficient evidence to show, on the balance of probabilities, that that the conduct (or some of the conduct) referred to in paragraph [56], in fact, took place. The Tribunal need only identify whether there are reasonable grounds upon which to form a reasonable suspicion that those things (or some of those things, specifically the things mentioned in paragraph [56(a)]) may have occurred.
The Tribunal is satisfied that there are reasonable grounds upon which it forms a reasonable suspicion that Mr Adekoya engaged in the conduct set out in paragraph [56(a)] above. The reasonable grounds upon which this suspicion is formed by the Tribunal are:
(a)The previous written admissions by Mr Adekoya as outlined in paragraph [56] and the statements of Mr Adekoya as referred to in that paragraph, made under declaration by Mr Adekoya that those statements were true and correct at the time he made them;
(b)The previous written claims made by Mr Adekoya on 20 May 2002 that he:
(i)Left Nigeria on 16 June 2000 out of fear for his safety to avoid being killed by the authorities who were after him; [32] and
(ii)There was “no question”, he would “certainly be killed” if he returned to Nigeria;[33]
(iii)Those things would happen to him because “I was actively involved with OPC. And during a protest by OPC many people died including the wife and children of one police officer when we visited his house to prove he was not a true member of OPC”. [34]
(c)The matters set out in paragraph [46(b)] above;
(d)The matters set out in paragraph [46(c)] above;
(e)The matters set out in paragraph [46(d)] above; and
(f)Mr Adekoya’s place of birth and ethnicity as a Yoruba were both consistent with being a member of the OPC, which was described by Mr Adekoya himself, as a “tribal union”. Further it is noted in Mr Adekoya’s statutory declaration dated 29 July 2015 he stated that “my involvement with OPC was simply by default of me being a young Yoruba male which was traditionally mandatory in those days. I would have equally provided verifiable evidence from the OPC hierarchy at the time confirming that I was a “non-entity” with the organization”. Mr Adekoya did not disclaim being a member of the OPC at the time of making this statement in 2015.
[32] Refer paragraph [23(b)].
[33] Refer paragraph [23(c)].
[34] Refer paragraph [23(e)].
The Tribunal has considered Mr Adekoya’s contention as outlined in paragraph [47] and rejects it for the reasons set out in paragraph [48], [49] and [50] and also on account of the express provision at the end of s 501(6)(ba) of the Act which establishes that it is not necessary for Mr Adekoya or another person to have been convicted of an offence for a reasonable suspicion to be formed that they have engaged in such conduct.
A war crime
Secondly, the Tribunal will consider whether there are reasonable grounds for it to form a reasonable suspicion that Mr Adekoya has been or is involved in conduct constituting “a war crime”.
The Tribunal will proceed with its examination by reference to the definition of “a war crime” in Article 8 of the Rome Statute.[35] Article 8.2 sets out four broad groups of actions, each of which would constitute a war crime. Two of these groups, set out in Articles 8.2(c) and (e), are potentially relevant to this application because, in contrast to the other two groups set out in Articles 8.2(a) and (b), they apply to “armed conflict not of an international character”, which is applicable in the present application.
[35] See SRYY v Minister for Immigration and Indigenous Affairs (2005) 220 ALR 394 and SZCWP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 9.
Both of Articles 8.2(c) and (e) do not apply to situations of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”. The Tribunal considers that the concerted lengthy and coordinated campaign led by the OPC from at least 1996 to 2003 and beyond that time, albeit to a lesser extent, involved an ongoing sequence of large-scale rallies and protests and the sophisticated monitoring of the army and the Nigerian police force, often involving violence and as such, does not fall within the exclusions set out in Article 8.2(d) or (f), namely, it did not constitute “situations of internal disturbances and tensions”. In relation to the exclusions set out in Article 8.2(f), the conflict involving the OPC is more appropriately characterised as “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups”. This means that those exclusions do not operate to render Articles 8.2(c) and (e) inapplicable with respect to the conflict involving the OPC and its members.
Specifically, in relation to Article 8.2(c)(i), a war crime includes acts of “violence to life and person, in particular murder of all kinds…”…“against persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and placed hors de combat by sickness, wounds, detention or any other cause”. In relation to Article 8.2(e) a war crime includes, under subparagraph (i): acts of “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”; or under subparagraph (ix) acts of “killing or wounding treacherously a combatant adversary”.
The Tribunal considers that the act of burning a suspected ‘informant’, his wife and children to death, if it occurred, is appropriately characterised as falling within the definition of Article 8.2(e)(ix). It would constitute an intentional attack against the civilian population as such or against individual civilians not taking direct part in hostilities under Article 8.2(e)(i) – the person, Mr Adewosi, was a member of the Nigerian police force which is a sub-group of, and in fact a protector of, the Nigerian civilian population. His wife and children are individual civilians. It would constitute an extreme act of violence to life and person. There was no indication by Mr Adekoya that the informant was armed or at the time of the suspected incident, engaged in an attack on Mr Adekoya and the other OPC members said to be engaged in this conduct.
The Tribunal is satisfied that there are reasonable grounds upon which it forms a reasonable suspicion that Mr Adekoya was individually responsible for and engaged in a war crime comprising the conduct set out in paragraph [56(a)] above, either under Article 8.2(c)(i) or Articles 8.2(e)(i) or (ix). The reasonable grounds upon which this suspicion is formed by the Tribunal are the same as those set out in paragraph [62] above.
The Tribunal has considered Mr Adekoya’s contention as outlined in paragraph [47] and rejects this for the reasons set out in paragraph [48] to [50].
The crime of genocide
Thirdly, the Tribunal will consider whether there are reasonable grounds for it to form a reasonable suspicion that Mr Adekoya has been or is involved in conduct constituting “the crime of genocide”.
“Genocide” is defined in Article 6 of the Rome Statute to include killing or causing serious bodily or mental harm to members of a whole or part of a national, ethnical, racial or religious group and those acts were committed with intent to destroy. Genocide by killing has the following elements:
(a)The perpetrator killed (or caused death to) one or more persons;
(b)Such person or persons belonged to a particular national, ethnical, racial or religious group;
(c)The perpetrator intended to destroy, in whole or in part, the national, ethnical, racial or religious group, as such;
(d)The conduct took place in the context of a manifest pattern of similar conduct directed against the group or was conduct that could of itself effect such destruction.[36]
[36] Refer the United Nations Report of the Preparatory Commission for the International Criminal Court – Finalised draft text of the Elements of Crime issued on 6 July 2000.
The Tribunal is satisfied that there are reasonable grounds upon which it forms a reasonable suspicion that Mr Adekoya was individually responsible for and engaged in the crime of genocide comprising the conduct set out in paragraph [55(a)] above. The reasonable grounds upon which this suspicion is formed by the Tribunal are the same as those set out in paragraph [62] above.
The specific conduct set out in paragraph [56(a)] involving Mr Adewosi and his family involved a specific small group of civilians. This conduct, if it occurred, is appropriately characterised as falling within the above definition. The presence of an “intention to destroy” members, in whole or in part, of the Hausa ethnic group, was indicated in the statements made by Mr Adekoya on 5 August 2002 that he “led the group to kill him with his wife and kids, we set the place to blazes. We made the decision in secret that we are going to get rid of all suspected members. The Hausa don’t care about the Yoruba so why should we care about them” – see paragraph [24].
In subparagraphs 56(b) and (c), Mr Adekoya also made statements on oath that he was involved in other broader conduct involving OPC rallies and protests at which persons were killed or injured, but there was insufficient particularity in those accounts to understand with clarity the specific actions for which Mr Adekoya was individually responsible or to understand precisely who had been murdered or injured. The Tribunal does not suspect that the crime of genocide occurred with respect to the conduct referred to in those two subparagraphs.
The Tribunal has considered Mr Adekoya’s contention as outlined in paragraph [47] and rejects this for the reasons set out in paragraph [48], [49] and [50].
Conclusion on applicability of s 501(6)(ba)
For the reasons set out in paragraphs [53] to [76] above, the Tribunal concludes that Mr Adekoya does not pass the character test because s 501(6)(ba) applies for the reason that the Tribunal is satisfied there are reasonable grounds to form a reasonable suspicion that Mr Adekoya has been involved in conduct which constitutes any one of the following: a crime against humanity; a war crime; or the crime of genocide.
Do the circumstances set out in s 501(6)(c) apply?
Section 501(6)(c) applies in circumstances where the Tribunal is satisfied that that person is not of good character having regard to either or both of the person’s past or present criminal conduct or the person’s past or present general conduct.
In its consideration of whether s 501(6)(c) applies, the Tribunal notes the observations of Justice Lee in Godley as follows (emphasis added):
[51] The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).
[52] A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197)
…
[66] Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
…
[77] A provision such as 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the Minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the Minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person. (See: Powell v Administrative Appeals Tribunal (1998) 98 FCR 1)
The Tribunal considers there is insufficient evidence to make a finding that Mr Adekoya was not of good character having regard only to his past and present criminal conduct, in consideration of the absence of any evidence indicating that Mr Adekoya was prosecuted and convicted of any criminal offences previously. Instead, there was positive evidence tendered comprising police clearances from Nigeria, South Africa and Australia, as detailed in paragraph [32] above, indicating that there were no such previous criminal convictions.
However, the Tribunal finds that Mr Adekoya was not of good character having regard to his past and previous general conduct for the following reasons.
The evidence revealed that at various times between Mr Adekoya’s arrival in Australia in 2002 until the hearing of this application, Mr Adekoya repeatedly made inconsistent statements in sworn statutory declarations or at formal interviews conducted by the Department or when giving evidence under oath at hearing before this Tribunal. As mentioned previously, Mr Adekoya has shown a particular ease by which he will change the propositions within his statements (often to the polar opposite of his earlier propositions) so as to serve his interests as they may change over time.
At the hearing, Mr Adekoya gave evidence that when he first arrived in Australia in 2002 he applied for a tourist visa which involved him representing to an officer of the Department that he was visiting Australia and not intending to stay, when in fact it was his intention to apply for a protection visa once present in Australia, which he then proceeded to do – see paragraph 25(b) above. At the hearing, Mr Adekoya also gave evidence to the effect that he had spent a total of 14 years in South Africa on a “self-employment” visa which, after 2010, was renewed every five years, however, he said he was only self-employed in South Africa for a period of two months in his “Winner’s shop”. This evidence indicates that misrepresentations were also made by Mr Adekoya previously to the South African Government to obtain and hold this type of visa based on a false premise by Mr Adekoya that he was self-employed when, apart from two months of the 14 year-long period, he was not. Mr Adekoya was questioned about whether he thought this was the right thing to do to which he responded, “Not the right thing to do but I didn’t have any shop at that time”. The Tribunal does not consider this an acceptable explanation.
In 2002 Mr Adekoya made sworn statements to the Department to the effect that he was involved in the serious conduct set out in paragraph [56] while he was in Nigeria. Mr Adekoya then asserted in 2005, once he had changed the type of visa he was pursuing, that he did not engage in that serious conduct. He sought to downplay, but did not deny altogether, the level of his previous involvement with the OPC – see paragraph [25].
At the hearing before this Tribunal (in June 2017), Mr Adekoya changed his position again and repeatedly stated that he was not, nor had he ever been, a member of the OPC nor had he ever hurt or killed anyone.
It is not possible for all of those statements in paragraphs [83], [84] and [85] to be true as they state opposing (or vastly differing) propositions.
Section 234 of the Act provides that it is an offence punishable by imprisonment (up to a maximum of 10 years) or the imposition of financial penalties where a person (including a visa applicant who is a non-citizen of Australia), in connection with their entry, proposed entry or immigration clearance to enter Australia, or with an application for their visa or a further visa, makes a statement that, to the person's knowledge, is false or misleading in a material particular, to an officer or a person exercising powers or performing functions under this Act.
Mr Adekoya was informed of the implications of making false statements to the Department in writing as it appeared on the visa application forms he was required to sign and submit. Mr Adekoya was also reminded a number of times at the interview in Pretoria of his obligation to provide information which was not false or misleading. Mr Adekoya gave sworn evidence at this Tribunal in June 2017.
Further, the Tribunal finds that, at the very least, Mr Adekoya was a member of the OPC and participated in rallies at which persons were killed – see paragraph 25(c) and (h). This is a further aspect of his general conduct which reflects poorly on Mr Adekoya’s character; namely, to be associated with such an organisation given the violent means by which it is prepared to achieve its objectives.
The Tribunal considers that this past and present general conduct goes beyond mere weaknesses or blemishes in character. The Tribunal finds that Mr Adekoya has demonstrated a lack of enduring moral qualities reflected in his propensity to repeatedly make false statements to officers of the Department or this Tribunal as set out by the course of conduct referred to above spanning over a decade as referred to in paragraphs [82] to [88]. The Tribunal has taken into consideration the matters set out in Annexure A of the Direction which deals with the application of the character test, and in particular at clauses 5 and 5.2 of Section 2 which relate specifically to past and present general conduct.
Given the ease by which Mr Adekoya was prepared to make false statements to Government officials in this way, despite the potentially serious repercussions of such conduct, the Tribunal is concerned about the potential for Mr Adekoya to present a risk to the Australian community as a person who may mislead the Australian government or other members of the Australian community in his day to day dealings with them if he is permitted to return to and remain in Australia. For these reasons, the Tribunal finds that s 501(6)(c) applied to Mr Adekoya. The matter referred to in paragraph [89] above also reinforced the Tribunal’s finding in this regard, demonstrating a further lack of respect of the rule of law.
In conclusion, the Tribunal is satisfied that Mr Adekoya fails the character test under s 501(6) on the basis of its finding that s 501(6)(c) applied in this case. For clarity, the conduct set out in paragraph [89] was not considered necessary for the Tribunal to reach its finding as set out in paragraph [91] – it was satisfied it could make this finding on the strength of the matters raised in paragraph [82] to [88].
Did the circumstances in s 501(6)(d) apply?
The Tribunal has considered the matters set out in section 6.1 of Annexure A to the Direction. Based on the evidence and findings of the Tribunal set out in paragraphs [82] to [88], the Tribunal is satisfied that if Mr Adekoya were allowed to enter or to remain in Australia, there is a significant risk that he would engage in criminal conduct in Australia in the form of providing future false or misleading statements to Government officials, authorities or other members of the Australian community in order to gain a personal advantage for himself. The Tribunal is satisfied this is conduct for which a criminal conviction could be recorded – see subclause 6.1(2) of section 2 of Annexure A of the Direction. For this reason, the Tribunal concludes that Mr Adekoya does not pass the character test under s 501(6) of the Act because s 501(6)(d)(i) applied in his case.
Mr Adekoya does not pass the character test under s 501(6) of the Act
The Tribunal concludes that Mr Adekoya does not pass the character test under s 501(6) of the Act, for each of the following reasons:
(a)The circumstances in subsection 501(6)(b) applied to Mr Adekoya;
(b)The circumstances in subsection 501(6)(ba) applied to Mr Adekoya;
(c)The circumstances in subsection 501(6)(c) applied to Mr Adekoya;
(d)The circumstances in subsection 501(6)(d)(i) applied to Mr Adekoya.
CONSIDERATION - ISSUE 2: DISCRETION TO REFUSE VISA
If the Tribunal is wrong in its decision that Mr Adekoya does not pass the character test under s 501(6), the Tribunal sets out below its decision as to whether it would otherwise exercise discretion under s 501(1) of the Act to refuse to grant a visa to Mr Adekoya.
Primary Considerations
A: Protection of the Australian Community from Criminal or Other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction, as relevant in this application, further provides that decision-makers should give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 11.1.1(1) of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct, which includes, as relevant to this application, the following:
a.The principle that violent and/or sexual crimes are viewed seriously;
b.The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
…
a.The cumulative effect of repeated offending;
…
As set out in paragraphs [25(a)], [25(b)] and [82] to [86] inclusive, the Tribunal finds that Mr Adekoya has repeatedly made false and misleading statements to officers of the Department and to this Tribunal, either by way of statutory declaration or upon swearing on oath that the statements made by him were true and correct. As indicated in paragraph [87], making false statements to officers of the Department constitutes an offence under the Act punishable by imprisonment and/or financial penalty. Making false statements to this Tribunal constitutes an offence of perjury which also may be punishable by imprisonment and/or financial penalty. Mr Adekoya on his own evidence admits to having made false statements about his conduct of burning down Mr Adewosi’s house with Mr Adewosi and his family inside of it. Even his various inconsistent explanations about why he had made those false statements as set out in paragraph [17(c)] varied significantly over time and Mr Adekoya admitted that the explanation he provided to his wife about this was incorrect. Importantly though, his evidence was that he was aware those statements to the Department, at the time he made them, were false (or so he said).
Each of the three different explanations proffered by Mr Adekoya (as set out in paragraph [47(c)]) were not valid reasons for Mr Adekoya’s concerted actions to attempt to fraudulently circumvent Australia’s immigration laws. Deceit by visa applicants cuts across the efficient operation of these laws. The Tribunal views seriously a failure to truthfully complete immigration documents, or to provide information to the Department in connection with a visa application and has done so previously as can be seen by the observations of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148 at [155-156]:
The observance of truth in dealing with officials in migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications...
The Tribunal finds that Mr Adekoya’s conduct comprising the repeated attempts by him, motivated purely by self-interest, to deceive the Australian Government in order to obtain a visa, should be characterised as serious. It demonstrates that Mr Adekoya has scant regard or respect for Australia’s immigration laws or the authority of governmental or legal processes.
The Tribunal is also satisfied that at the very least, Mr Adekoya was a member of the OPC and that he participated in an OPC rally during which violence was employed by members of the OPC resulting in the injury and death of persons. While there is insufficient evidence to make a positive finding that Mr Adekoya himself was personally involved in those attacks, the Tribunal has formed a reasonable suspicion that this may have been the case. The Tribunal does not propose to place weight on matters unless a positive finding can be made in relation to them and for this reason will not take into account for the purpose of this particular consideration in the Direction, any possible personal involvement in the violence by Mr Adekoya. However, the Tribunal does propose to take into account the Tribunal’s finding that at the very least, he was a member and participated in this rally with the knowledge that other members of the OPC engaged in conduct by which persons were injured and killed as a result.
The Tribunal considers that the expectations of the Australian community are such that it would expect a person who has engaged in the conduct set out in the above paragraph to be refused a visa to enjoy the privilege of entering and remaining in Australia. The association with an organisation such as the OPC which engages in vigilante activities, and particularly, in one of its violent rallies, as demonstrated by Mr Adekoya’s conduct, is appropriately categorised as serious.
The serious conduct engaged in by Mr Adekoya as set out in paragraphs [97] to [101] weighs heavily in favour of the refusal of his visa application.
The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(3) of the Direction provides that Tribunal must have regard to the following two factors in determining the risk to the Australian community if Mr Adekoya were to continue to engage in other serious conduct:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, and the duration of the intended stay in Australia.
If Mr Adekoya should engage in the conduct referred to in paragraphs [97] again, there is potential for significant harm to be caused to the Australian community. Mr Adekoya has demonstrated an ease by which he is prepared to deceive and make false statements to the Australian Government and this Tribunal when motivated by self-interest to do so. He has also demonstrated that he has been prepared to do so for a considerable period of time, spanning over a decade. The Tribunal considers it is unlikely that Mr Adekoya’s propensity in this regard will change into the future. If this were to continue upon his arrival into Australia, the Australian community may be harmed by Mr Adekoya seeking to obtain personal benefits or advantages for himself from the Australian Government on the basis of continued deception or the making of false statements. If Mr Adekoya seeks to engage with the Australian business community upon his arrival in Australia, and in doing so, engages in deceptive conduct, members of the business community may face harm from such continued deceptive conduct by Mr Adekoya.
The Tribunal accepts that there is much less likelihood that Mr Adekoya would engage in the type of conduct referred to in paragraph [100], given the comparatively peaceful environment existing in Australia. Nevertheless, it does indicate a propensity by Mr Adekoya to enlist his support and participation in a radical political group within Australia, should the opportunity ever present itself. The Tribunal has considered this but does not afford it great weight. It considers there is greater potential for harm to the Australian community by the risk of him continuing to engage in the deceptive conduct referred to in paragraphs [82] to [86].
No evidence from independent and authoritative sources about the risk of Mr Adekoya repeating his past conduct, or any steps taken to rehabilitate Mr Adekoya from engaging in such conduct in the future, was relied upon by Mr Adekoya or his legal representatives leading up to and during the hearing of this matter.
Mr Adekoya’s evidence indicates that his intention, if granted the visa, is to return to Australia to be reunited with his Australian wife and two sons. Evidence was also given that Mr Adekoya’s intention was that his other adult children who are Nigerian citizens would also apply to immigrate to Australia in the future. Every indication from the evidence was that Mr Adekoya intends to return to Australia, if granted a visa, and to remain indefinitely.
The Tribunal considers that there is significant potential future harm that Mr Adekoya may cause to members of the Australian community should he be permitted to enter and remain in Australia by continuing to make false statements to the Government and other bodies of authority in the future in order to secure personal benefits or advantages for himself or his family members.
In consideration of the above factors, the Tribunal considers that Primary Consideration A under the Direction weighs heavily in favour of Mr Adekoya’s visa being refused.
Primary Consideration B: The Best Interests of Minor Children in Australia
This consideration is of particular importance in this case, as Mr Adekoya and Mrs Adekoya have two biological sons aged 13 and 6 who are Australian citizens and are both living in Australia. They live with Mrs Adekoya and her mother.
It was clear from Mrs Adekoya’s evidence that she would like Mr Adekoya to be granted a visa to enter and remain in Australia so that their family could be reunited. She gave evidence of the impact of Mr Adekoya not having been in Australia in that it had “not been good” as it had been “very difficult for her” in that she has had to be “both the mother and father for her sons”. Mrs Adekoya said she worked four days per week at Baptcare, where she has been employed for the last four years, and that her work hours meant that that she was home after 2pm in the afternoon. Mrs Adekoya said that her mother had been “her rock”; her mother was aged 68 and in good health but that she “needed a break”.
Mrs Adekoya’s evidence about whether Mr Adekoya was involved in the decision-making in relation to her sons was that, “It is up to me because [Mr Adekoya] can’t ever help me. Anything that crops up with the kids I always speak to him”. No further evidence was given in relation to Mr Adekoya’s specific involvement with the decision-making in relation to his sons.
Mrs Adekoya gave evidence that her sons spoke to Mr Adekoya on average once a week on the telephone. Mr Adekoya said that when he speaks to his sons on the phone he reminds them to behave well so that they did not tarnish the Adekoya family name. Mrs Adekoya gave evidence at the hearing that her sons visited Mr Adekoya in South Africa in December 2015/January 2016 (for 6 weeks) and in 2012 (for 11.5 weeks). The eldest son, Caleb, also visited Mr Adekoya in 2010 (for 3.5 weeks) and 2007 (for 12 weeks). The Tribunal acknowledges that Mr Adekoya has spent some time with his sons, although it could not be described as considerable. The Tribunal notes that it has been approximately 20 months since Mr Adekoya has had any face to face interaction with his sons. The time he spends talking to his sons on the phone is also not considerable. Most importantly, the Tribunal notes that since the birth of both of the sons, Mr Adekoya has not been present in Australia to assume a parental role in relation to their care. It does not appear that he has been significantly involved in the decision-making in relation to their welfare.
Mrs Adekoya was questioned by the Tribunal at the hearing about how her eldest son felt about his father and the idea of him returning to Australia. Mrs Adekoya accepted that it would be “a long road for both of them because they were not used to one another”. She said that “they have not been as father and son and would need to learn to live together”. She said “it would take long time to get the father-son relationship back” and that “they were both stubborn”, particularly her son. She said that Mr Adekoya and her eldest son had sport as a common interest between them.
The Tribunal acknowledges that Mrs Adekoya’s need for support in relation to her youngest son is high. The medical evidence as set out in paragraphs [30] and [31] sets out the medical history regarding her younger son’s medical conditions, necessitating ongoing medical monitoring and care and requiring him to be attend a specialist school. The youngest son is presently on a NDIS plan offering him some support for those conditions. This presents particularly challenging personal circumstances for Mrs Adekoya. However, the Tribunal notes that Mrs Adekoya’s mother is presently assisting Mrs Adekoya to care for her sons, including the youngest son, as she has done since 2009, and that this is likely to continue given that Mrs Adekoya’s mother is presently in good health.
Paragraph 11.2(4)(a) of the Direction stipulates that less weight should generally be given where the relationship is non-parental and/or there is no existing relationship and/or there have been long periods of absence, and/or limited meaningful contact. In this case, there is an existing relationship but the Tribunal considers that the contact between Mr Adekoya and his two sons has been limited and essentially, his relationship with them is non-parental.
Based on the above, the Tribunal acknowledges that Mrs Adekoya and her sons may well receive additional support should Mr Adekoya be permitted to return to Australia. For this reason, the Tribunal considers that factor should weigh against the exercise of discretion to refuse the visa, but not significantly so for the reasons set out in paragraphs [113], [114], [115] and [117].
Primary Consideration C: The Expectations of the Australian Community
Paragraph 11.3(1) of the Direction requires the Tribunal to exercise discretion to refuse a visa when the conduct of a visa applicant is such that the Australian community would expect that he should not hold a visa.
Taking into account the repeated and serious nature of Mr Adekoya’s conduct, both in relation to the making of false statements to the Department and this Tribunal, and his involvement in the OPC and participation in an OPC rally (in circumstances where even though there was a lack of evidence to show on the balance of probabilities that Mr Adekoya was personally responsible for the injuries and killing of other people, he was nonetheless aware this was expected to and did take place during the rally, the Tribunal is satisfied that the Australian community would expect that he should not be granted a visa to enter and remain in Australia.
The Tribunal finds that this consideration weighs heavily in favour of exercising the discretion to refuse the Applicant’s visa.
Other Considerations
Other considerations to which the Tribunal should have regard when exercising discretion under s 501(1) are listed at paragraph 12 of the Direction as set out below.
International non-refoulement obligations under paragraph 12(a)
This consideration is of no relevance in this application. Mr Adekoya has returned to Nigeria and has been living there for the last 12 months.
Impact on family members under paragraph 12(b)
Impact on Mrs Adekoya
The Tribunal considers that Mrs Adekoya would be devastated if her husband did not secure a visa. The Tribunal acknowledges the evidence give my Mrs Adekoya as set out in paragraph [29(g)] indicating that she was “at breaking point”. To affirm the decision to refuse the visa application will prevent Mr Adekoya from returning to Australia to live with her and to assist her to care for her sons and the Tribunal accepts Mrs Adekoya’s evidence that she loves her husband. However, the Tribunal has considered that up until now, Mrs Adekoya has been the single parent of her children in the absence of Mr Adekoya. Until now, Mrs Adekoya’s mother has supported her with raising Mrs Adekoya’s two sons and based on the evidence, is able-bodied such that it is expected that she will continue to do so.
Mrs Adekoya is presently in stable employment and has until now and has provided the financial support for her two sons, so it is expected that this would continue to be the case. The Tribunal is not persuaded this is likely to change if Mr Adekoya returns to Australia. Mr Adekoya’s evidence was that in the last 13 years he has been unemployed and has not provided any financial support to Mrs Adekoya or his two sons. Mrs Adekoya supports him financially.
Impact on Mr Adekoya’s two sons
As a general proposition, the Tribunal recognises that it would be highly desirable for a biological parent to be present in the same country and living with their children. In this application, the Tribunal considers that it is appropriate to consider the particular circumstances regarding the lives of both of Mr Adekoya’s sons; Mr Adekoya has had some limited contact, but has not had a parental relationship with either of them. If Mr Adekoya is not permitted to return to Australia, continued contact between Mr Adekoya and his sons may still continue as it has in the past by telephone (or social media channels for that matter) and future visits may still take place in a country outside of Australia, as has happened in the past.
In consideration of the above, the Tribunal attaches some, but minimal weight, to this factor against exercising discretion to refuse to grant a visa to Mr Adekoya.
Impact on victims under paragraph 12(c)
This consideration is of no relevance in this application.
Impact on Australian business interests under paragraph 12(d)
There is no suggestion that any Australian business interests would be impacted if Mr Adekoya does not obtain a visa. Mr Adekoya has been unemployed for the last 13 years and has relied on monthly financial support from his Australian wife and other family members during this time. The Tribunal has attached no weight to this consideration in the exercise of its discretion.
Other comments
The Tribunal has taken into account the various letters of support for Mrs Adekoya and Mr Adekoya as outlined in paragraphs [36] to [39] inclusive which in the main focus on confirming that they are in a genuine relationship. The Tribunal has attached some weight, although not significant, to this consideration against the refusal of the visa.
CONCLUSION
The Tribunal affirms the decision under review on the basis that it concludes that Mr Adekoya does not pass the character test under s 501(6) of the Act for reasons set out above.
If the Tribunal’s conclusion that Mr Adekoya does not pass the character test under s 501(6) of the Act is found to be wrong, the Tribunal otherwise exercises discretion under s 501(1) of the Act to refuse the visa to Mr Adekoya on the following basis. To a limited extent, Primary Consideration C (the best of interests of minor children) weighed against the refusal of the visa, as did one of the Other Considerations relating to “Impact of Family Members”, as did the letters of support referred to in paragraph [130]. However, the Tribunal concludes that these considerations do not outweigh the finding of the Tribunal that the remaining two Primary Considerations (ie. Primary Considerations A and B) both weighed heavily in favour of exercising the discretion to refuse the visa to Mr Adekoya.
DECISION
For the reasons outlined above, the Tribunal affirms the decision under review.
I certify that the preceding 133 (one hundred and thirty three) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
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AssociateDated 31 October 2017
Date of hearing: 16 June 2017
Advocate for the Applicant: Mr Rolf Sorenson Solicitors for the Applicant: Goz Chambers Lawyers Advocate for the Respondent: Mr Chris Tran Solicitors for the Respondent: Sparke Helmore
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