Adekoya and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Mr Adekoya against a decision to refuse him a visa. Mr Adekoya, a Nigerian national, had previously applied for a protection visa in Australia, which was refused on the grounds that he was a member of an organisation responsible for crimes against humanity. He later applied for a partner visa with his wife, which was also refused. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Adekoya passed the character test under section 501(1) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether there was a reasonable suspicion that Mr Adekoya had been involved in conduct constituting a crime against humanity or a war crime, as contemplated by section 501(6)(ba)(iii) of the Act. This required the Tribunal to consider the definition of "reasonable suspicion" in the context of the character test, which is a suspicion that a reasonable person could hold based on an objective consideration of relevant material, falling between mere speculation and certainty. The Tribunal also considered whether other subsections of section 501(6) applied, including those relating to criminal conduct and associations with criminal organisations.

The Tribunal reasoned that a reasonable suspicion could be formed based on the material before it, including Mr Adekoya's own statements regarding his membership in the Odua People’s Congress (OPC) and his admitted involvement in burning down a house with civilians inside. The Tribunal noted that Mr Adekoya had previously been refused a protection visa due to serious concerns about his involvement in war crimes. Despite Mr Adekoya's assertion that his previous statements were motivated by a desire to remain in Australia, the War Crimes Unit concluded that no further assessment was required, and the existing assessment could be relied upon. The Tribunal also considered statutory declarations from Australian citizens attesting to the genuineness of Mr Adekoya's relationship with his wife and children, but these did not negate the concerns regarding his character.

The Tribunal found that Mr Adekoya did not pass the character test. Consequently, the delegate or decision-maker considering the visa refusal for Mr Adekoya could rely on the information contained in the War Crimes Assessment dated 11 February 2009.