Adekoya and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 768

Adekoya and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 768 (8 April 2020)
Division:GENERAL DIVISION
File Number: 2016/5031
Re:Nadine Adekoya
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:8 April 2020
Place:Melbourne

The Tribunal decides to affirm the decision under review, being the decision of 25 August 2016 to refuse the Applicant’s Partner Provisional (Class UF) visa.
......[sgd]..................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – remittal by consent – visa applicant is a citizen of Nigeria – review applicant is Australian citizen – refusal to grant visa applicant a Partner Provisional (Class UF) visa – refusal under s 501(1) of Migration Act – does visa applicant pass character test – if not should application be refused – claims made of involvement in serious crimes – claims subsequently retracted – reasonable suspicion visa applicant involved in crime against humanity or war crime – truthfulness in information given to immigration authorities – consideration of ministerial Direction No. 79 – primary considerations – protection of Australian community – best interests of minor children in Australia affected – expectations of Australian community – other considerations – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A
Migration Act 1958 (Cth), ss 338, 347, 499, 501
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
George v Rackett (1990) 170 CLR 104
Godley v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 83 ALD 411
SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 42
SZCWP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 9
Secondary Materials
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS (entered into force 1 July 2002)
REASONS FOR DECISION
Senior Member D. J. Morris
8 April 2020
BACKGROUND

This matter was remitted to the Tribunal by a consent order of Her Honour Justice Kenny of the Federal Court of Australia dated 21 May 2019, for fresh determination.
The Visa Applicant, Mr Sammy Adekoya, was refused a Partner (Provisional) (Class UF) visa by a delegate of the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), on 25 August 2016 acting under section 501(1) of the Migration Act 1958 (Cth) (the Act). The delegate was not satisfied that Mr Adekoya passed the character test under section 501(6)(ba)(iii) of the Act.
The Applicant’s wife, Mrs Nadine Adekoya (the Review Applicant), an Australian citizen resident in Australia, brought an application for review of this decision to the Tribunal. Her right to do so stems from sections 338(6)(c) and 347(2)(b) of the Act, as the spouse of the Visa Applicant.
A hearing was held on 30 September 2019. The Review Applicant gave evidence and was examined by her legal representative, Mr Rolf Sorensen of counsel, instructed by Mr Godson Nwanko of Goz Chambers Lawyers. Mrs Adekoya was cross-examined by Mr Christopher Orchard of Sparke Helmore Lawyers, representing the Respondent. The Visa Applicant, Mr Adekoya, gave evidence by telephone by leave under section 33A(1) of the Administrative Appeals Tribunal Act 1975 (Cth), and was cross-examined.
Both parties submitted Statements of Facts, Issues and Contentions. The Respondent tendered a volume of documents (‘G’ documents) lodged on 17 July 2019. The Tribunal took into evidence: description of the OPC derived from website (Exhibit A1); article titled The O’Odua People’s Congress, Fighting Violence with Violence, from Human Rights Watch, dated February 2003 (Exhibit A2); medical report of Dr Ken McHenry, dated 15 August 2019 (Exhibit A3); medical report signed by Dr Olawale Ko, dated 26 September 2019 (Exhibit A4); Report on human rights issues in Nigeria; Joint British-Danish fact-finding mission to Abuja and Lagos, Nigeria, The Danish Immigration Service, dated January 2005 (Exhibit R1). The Tribunal also had before it supplementary documents lodged by the Applicant dated 24 May 2017 (ASD).
The two questions before the Tribunal are, first, whether Mr Adekoya fails the character test under section 501(6) of the Act and, secondly, if he does, whether the discretionary power to refuse his application for a partner visa should be exercised.
Section 501(1) of the Act gives the Minister a discretionary power to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) of the Act provides, relevantly:
(6)          For the purpose of this section, a person does not pass the character test if:
…
(ba)      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.
Visa Applicant’s immigration background
The Respondent provided the following factual background, which was not disputed by counsel for the Applicant. Mr Adekoya is a citizen of the Federal Republic of Nigeria (G3, p 25), born in January 1960. He first came to Australia on 13 May 2002 as the holder of a Tourist (Class TR) visa. On 21 May 2002, Mr Adekoya lodged an application for a Protection (Class XA-PV) visa. This application was refused. The delegate found that Mr Adekoya:
“is excluded under Article 1F(a) from coverage of the 1951 Convention of Refugees [sic] I find that he is not a person to whom Australia has protection obligations under the Refugee Convention.”
The Tribunal notes that Article 1F of the 1951 Convention relating to the Status of Refugees (the Refugee Convention) states:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)He has been guilty of acts contrary to the purposes and principles of the United Nations.
Mr Adekoya sought review of this decision by the then Refugee Review Tribunal, which advised him that it had no jurisdiction to review applications refused under Article 1F of the Refugee Convention. Mr Adekoya sought review by the Administrative Appeals Tribunal of the decision to refuse the protection visa application. On 15 March 2004 Mr Adekoya departed Australia, as the holder of a Bridging (Class WA 010) visa. He subsequently withdrew his application to the Tribunal and has remained off-shore since that time.
On 24 March 2004 Mr Adekoya lodged a combined application for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa at the Australian High Commission in South Africa. On 30 January 2007 the Respondent refused this application. That refusal was overturned by the (then) Migration Review Tribunal 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 the visa sponsor, Mrs Adekoya.
On 11 February 2009, the War Crimes Section of the Department issued a ‘War Crimes Screening Assessment’ in relation to Mr Adekoya stating that it was (GD, p 74):
reasonable to suspect that Mr ADEKOYA has been involved in 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.
The application was refused again by the Department on 28 October 2009 under section 501(1) on the basis of 501(6)(c)(ii) of the Act which provides that a person does not pass the character test if, having regard to a person’s past and present general conduct, they are not of good character.
On 26 June 2013, at the Department’s office at the Australian High Commission in Pretoria, South Africa (G3, p 9), Mr Adekoya lodged a further combined application for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa. This application was refused by a delegate for the Respondent on 25 August 2016. The delegate concluded that Mr Adekoya did not pass the character test on the basis of 501(6)(ba)(iii) of the Act. It is this decision to refuse the visa that is the subject of this review.
THE CHARACTER TEST
Submissions of the Visa Applicant – character test
Counsel for the Visa Applicant noted that the delegate’s finding that Mr Adekoya failed to pass the character test was based on section 501(6)(ba)(iii) of the Act, that the Minister reasonably suspects that an applicant for a visa has been or is involved in conduct constituting the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery, or a crime that is otherwise of international concern.
Mr Sorensen submitted that the Minister’s suspicion, that Mr Adekoya was involved in Nigeria in conduct of the kind referred to in section 501(6)(ba)(iii) of the Act, was solely based on accounts of events volunteered by Mr Adekoya himself in support of a previous application for a protection visa.
On 17 June 2002, Mr Adekoya stated that he was actively and personally involved in, and in fact led, the killing of an informer against the O’odua People’s Congress (OPC), of which he claimed membership, as well as the informer’s wife and children. Earlier, in May 2002, Mr Adekoya claimed that he was involved in monitoring potential informers for the OPC. In 2004 Mr Adekoya withdrew his application for a protection visa and he retracted his relevant admissions in an interview in February 2005. He reiterated this retraction in November 2008 and again in July 2014.
Counsel for Mr Adekoya submitted that the account of events that Mr Adekoya had volunteered, and since retracted, relating to his personal involvement in killings is ‘insufficiently plausible to support a reasonable suspicion of involvement in conduct of the kind referred to in section 501(6)(ba)(iii), and there is no other evidence to support a finding that Mr Adekoya failed to pass the character test as determined by the delegate.’
Mr Sorensen went on to submit that even if the Tribunal does form such a suspicion, it should exercise the discretion which exists under section 501(1) of the Act to, nonetheless, grant Mr Adekoya a visa on the basis of (1) his marriage of significant duration to an Australian citizen resident in Australia with their two children, one of whom has special medical needs, and (2) insufficient evidence of a threat to the Australian community posed by Mr Adekoya given the context and nature of any involvement in relevant conduct of which he might be reasonably suspected, and the need to assess the objective rationality of any risk to the Australian community, and his lack of any criminal record in any country.
The Respondent’s representative submitted that in making the reviewable decision the delegate relied upon a determination of the War Crimes Section of the Department which concluded that it was reasonable to suspect that the Visa Applicant 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 rights abuses, namely the OPC. Mr Orchard submitted that the War Crimes Section assessment took account of Mr Adekoya’s statements to officers of the Department in 2002 and country information concerning the activities of the OPC.
Consideration
The various statements of the Visa Applicant
In June 2002 Mr Adekoya attended an interview at the Melbourne office of the Department. During the course of the interview, he stated the following (GD, p 267):
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 be an officer of the OPC and it is difficult; you must be able to bear all the consequences and risks because during 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 [victim’s name]. 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 [the victim’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 [the victim] and they said he lives next door and he is an 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 [the victim’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 [victim’s name] living there, I am alone here’; she was lying and it was glaring. We knocked on the door because we wanted to be sure that [the victim] was staying in the home. The third time we went to [the victim’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 [the victim] and the other informants.
We went to [the victim’s] home and told him to come out and face the public, now that we knew he was an informant, and warned him that the house would be burned down if he didn’t come out. So we 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 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 down during the night and sometimes during the day.
After this protest during which we burned down [the victim’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 house and shot my father during an interrogation. One of the other OPC members involved in the action against [the victim] had already been killed and I knew I would be the next victim. That I when I escaped to Cameroon, I did not need a passport to do this. We drove through the night to Cameroon and then boarded a boat to South Africa.
(Emphasis added.)
The Tribunal will call the above the ‘2002 Statement.’
In February 2005, Mr Adekoya attended an interview with Department officers at the Australian High Commission in Pretoria, South Africa. In the course of that interview, the record of interview relevantly states (GD, p 176):
PV APPLICATION REASONS FOR CLAIMS? When I was in Nigeria, I belonged to OPC (Odua 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 and 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 they would be looking for me so I escaped to Cameroon then came to South Africa.
WERE YOU INVOLVED IN BURNING OF THE HOUSE? I was present but not involved.
YOU MENTIONED THE THAT THE INFORMANT HAD PETROL POURED ON THE INFORMANT [sic]. WHAT HAPPENED TO HIM? No, I did not say that. (Put to PA that I typed his words EXACTLY as he said them. He denied saying this.)
Later in the interview, the following exchange occurred (GD, p 182):
THIS OFFICE HAS INFORMATION THAT LEADS IS 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.
The Tribunal will call the above the ‘2005 Statement.’
In November 2008, Mr Adekoya made a further statement to the Department. He stated (GD, p 72) (all sic):
The OPC in Nigeria is a neighbourhood organisation that, monitor the community against crime, and in my activity in the association is just at ordinary and common level of watch night or daily guide in the community.
I don’t belong to the hierarchy in the association and we were not allowed to use arms on any suspected robber, but, we only use whistle and radio communication to alert the residents about any suspicious movement.
I have not killed any human being in my life and I will never killed any human being, or burn any one including damaging and one’s properties…
…In my protection visa application was just an exaggeration, thinking that saying that will help my protection application.
(Emphasis added.)
The Tribunal will call the above the ‘2008 Statement.’
In July 2015 Mr Adekoya made a statutory declaration in which he relevantly stated, after discussing his decision to withdraw his application for a protection visa and lodge a spouse visa application in South Africa (GD, p 88):
Unfortunately my agent did not caution me about the consequence 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.
As stated above, I admit making claims in the application that I was an active member of Odua People’s Congress (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.
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 purposes of determining whether I have any criminal record either in Nigeria, South Africa or Australia.
I 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 Nigerian state government.
(Emphasis added.)

The Tribunal will call the above the ‘2015 Statement.’
Oral evidence of the Visa Applicant
Mr Adekoya told the Tribunal that he “never had any involvement with the OPC at all. That is the simple truth.” When asked what he knew about their activities in 2002, or what he had observed of their activities then, Mr Adekoya responded that did not know of their activities then, and stated “I am sorry for giving false information.”
Mr Sorensen asked Mr Adekoya why he had made false statements to the Department. The Visa Applicant responded: “Number one, I wasn’t in the right state of mind. Number two, I wasn’t aware what I was going to say, I thought I would get asylum. I have suffered for fifteen years away from my wife. I have suffered for my blunder. I never mixed with them, never was involved with them. That is the simple truth.”
Under cross-examination, Mr Orchard took Mr Adekoya to a 2002 statutory declaration he made (GD, G37, pp 262-263) in which he stated that he had escaped from Nigeria to South Africa in order to avoid persecution because of his membership of the OPC and his participation in several protests ‘since the dawn of the OPC.’
Mr Adekoya said that the statement was not truthful, that at the time he was seeking refugee asylum, he was depressed, and that he had been told by a friend, who was also seeking asylum, to lie.
Mr Adekoya agreed that he then applied for a review of his unsuccessful protection visa application, knowing (on the basis of his current stance) that his claims were a lie.
Mr Adekoya was asked about his 2002 Statement. He agreed that he had made those statements to the Department but that they were not the truth.
When asked about his claims that he had joined the OPC, been promoted as an officer of the OPC, was one of only ten in his State, and that he led the group to kill a man, he said it was all “a lie, fabricated and done out of ignorance.”
Mr Adekoya was then asked about his 2005 Statement made at the Australian High Commission in Pretoria. He said that these statements were also untruthful and that “I thought if I told the truth it would not be good on my side.” When asked why he persisted in making these statements after his protection visa application had been refused, Mr Adekoya responded “I thought I might get a visa sooner or later.”
Mr Adekoya was then asked about the 2008 Statement in which he described the OPC as a ‘neighbourhood organization.’ He said he saw that description on the Internet. When asked whether he accepted that the OPC had a violent history and had been involved in war crimes, Mr Adekoya said “I know nothing about the OPC. I know nothing about them at all.”
Mr Adekoya was then asked about his 2015 Statement in which he said he was a ‘non entity in the OPC.’ He told the Tribunal that he said that because he was never a member of it.
When it was put to the Visa Applicant that this answer is hard to believe, Mr Adekoya said: “It is hard to believe but trust me that I am telling the truth now.”
It was put to Mr Adekoya that he sought to change his story about his involvement in the OPC to help his visa outcome. He responded: “I have learned a lot from my wife about telling the truth.”
Mr Adekoya was asked about a 2003 Human Rights Watch report (GD, p 72) which states:
OPC has been responsible for numerous acts of violence and its members have killed or injured hundreds of people…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 corpses of those they had killed, sometimes after mutilating them.
The Visa Applicant asked whether he accepted Human Rights Watch report describing the OPC as ‘violent.’ Mr Adekoya said: “I won’t say yes or no, because physically I’ve not been a member.”
Mr Sorensen submitted a letter dated 11 April 2017 (ASD) from an officer of the OPC which states:
This letter serves to confirm that Mr Sammy Abiodun Adekoya...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.
The Tribunal regards this letter with scepticism. If the Visa Applicant had made a false statement in 2002 that he then regretted, he could possibly have obtained a contemporaneous document stating he was not a member of the OPC. Instead, he began a series of statements steadily, but iteratively, recanting his level of involvement with the OPC. His most recent declaration is that he has ‘never’ been involved, which is consistent with this letter. In the circumstances of the background of the organisation and the iterations of different versions of events provided by Mr Adekoya, the Tribunal gives this document little weight.
The inconsistencies in the Visa Applicant’s evidence
In the 2002 Statement, Mr Adekoya gave Department officers a detailed description of his involvement in the OPC. He stated that he was one of the first of its members in the year that he joined it and in the following year when he was promoted within it. He stated that he gave the OPC not only moral but also financial support. He said he organised and led rallies. He said he held office as ‘publicity secretary’. His description of, first, observing a suspected informant, then ascertaining he was at home and then leading others to set fire to the person’s home, with not only the person but his wife and children inside the residence, contains explicit details, including accounts of conversations with the person’s wife. It is implausible to the Tribunal that he made up these details as he delivered them in the interview setting.
Even if that claim by the Visa Applicant were to be accepted as plausible, in his next relevant statement, the 2005 Statement, Mr Adekoya said that he was a member of the OPC ‘but a minor member.’ He then said he was ‘with’ other OPC members when they poured petrol on an informant, and his house was burnt, but that his family escaped and no one was killed.
In his next version of events, Mr Adekoya’s 2008 Statement, he states that he was not a member of the hierarchy of the OPC, and that it was a ‘neighbourhood organization.’ He told the hearing that he got this description of the OPC from the Internet.
In his 2015 Statement, made by way of a statutory declaration, Mr Adekoya again amended the extent of his involvement with the OPC by saying that his membership of it was simply ‘by default’ of being a young Yoruba male, and that he was a ‘non entity’ in the organisation. At the hearing, Mr Adekoya said he would not have used the word ‘default’ but agreed that it was correct to say he was a ‘non entity’ in the organisation.
So, simply put, Mr Adekoya’s story has changed from his first claim that he was a founding member and officer of the OPC, and led what can only be described as a crime of extreme violence against another member of the organisation, killing that person and his family; to a second version of him being a member of the OPC who was present when a person had petrol poured over him (but not himself being involved); to a third version of being a member of the organisation, but not ‘in the hierarchy’ of the OPC; to a fourth version of being a member of the OPC only because of his age, sex and tribal group, but a ‘non entity’; to a fifth version, in his oral evidence, that he was not a member of the OPC at all, and did not know anything about the organisation.
Because of the variety of histories Mr Adekoya has proffered, the Tribunal considers that the Visa Applicant’s evidence is completely unreliable. He admitted at the hearing that he has made multiple false claims to officers of the Department. He submitted that he made these claims, at first, solely in order to best position himself for a visa, and then, when his first application for a visa was refused, to re-position himself for a different category of visa.
During the hearing, the Tribunal asked Mr Adekoya directly why, if as he now claims his first – and very detailed – account in interview with Department offices in 2002 was completely false, he did not simply retract this account in 2005, and say he was not involved in the OPC at all. The Visa Applicant did not provide any satisfactory response, except to say that it was wrong of him to have lied, and he apologised.
This is a key difficulty that the Tribunal has in accepting the truthfulness of Mr Adekoya’s different versions of events. It seems logical to the Tribunal that if, as he now submits, his 2002 Statement was a complete tissue of lies, Mr Adekoya would have abandoned it much earlier – at his next interaction with the Department. Instead, he sought to supply different versions which progressively, but by steps, retreated from the first detailed statement, and also progressively diluted his level of involvement with the OPC until, at this hearing, he claimed to have no involvement with that organisation at all. The Tribunal finds that this latest claim is inherently implausible.
Counsel for the Applicant said that there is no corroboration of the Applicant’s initial claims, which he has now retracted. That may be so, but this submission skirts around the fact that Mr Adekoya’s retraction has been graduated, it would seem in an effort to give him an immigration advantage. It also does not address the fact that the initial claims in the 2002 Statement were given in fine detail, detail that is not consistent with an account composed ex tempore.
What is the OPC?
The War Crimes Screening Assessment conducted by the Department (GD, pp 66-75) quoted a 2003 Human Rights Watch document about the OPC. It states:
[The OPC] is an organisation active throughout Nigeria especially in the southwest and in the Lagos city area. It has been responsible for numerous human rights abuses and acts of violence, and its members have killed or injured hundreds of unarmed civilians.
[…]
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 were 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 firearms, 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.
What is a ‘crime against humanity’?
In SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 the Court (Merkel, Finkelstein and Weinberg JJ) held, at [76], that the definition of crimes against humanity and war crimes contained in Articles 7 and 8(2)(c) of the Rome Statute of the International Criminal Court (the Rome Statute), respectively, are the appropriate definitions for the Tribunal to apply. This was referred to with approval in SZCWP v Minister for Immigration and Multicultural andIndigenous Affairs [2006] FCAFC 9 (per Downes J, at [107]).
Articles 7 and 8(2)(c) of the Rome Statute read:
Article 7 – 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;
(b)     Extermination;
(c)     Enslavement;
(d)     Deportation or forcible transfer of population;
(e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f)     Torture;
(g)     Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(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;
(i)     Enforced disappearance of persons;
(j)     The crime of apartheid;
(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;
(b)     "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c)     "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
(d)     "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e)     "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f)     "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
(g)     "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h)     "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
(i)     "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
3.         For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
Article 8 – War Crimes
1.         The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2.         For the purpose of this Statute, "war crimes" means:
{…]
(c)     In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i)     Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii)     Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii)     Taking of hostages;
(iv)     The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
The Tribunal is satisfied that the activities of the OPC, as summarised in the Human Rights Watch report (GD, pp 66-75 and p 72), fulfil the definition contemplated in the Rome Statute, in particular Article 7(1)(a), (h) and (k).
It is not necessary for the Tribunal to make a determination as to whether the actions of Mr Adekoya may also constitute a war crime within the terms of the Rome Statute, because section 501(ba) requires only a reasonable suspicion that the person has been or is involved in one of the stipulated activities, and section 501(ba)(iii) lists the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that otherwise is of international concern.
What is a reasonable suspicion?
The Federal Court of Australia has held that a suspicion is reasonable if it is based on reasonable grounds (see Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J at [47]).
In George v Rockett (1990) 170 CLR 104, the High Court of Australia (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) held, at [14]:
Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (1970) AC 942, at p 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees [1996] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay (its) debts as they became due" as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at p 303):
"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 Chambers'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, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or 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."
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

The Tribunal concludes that it has a reasonable suspicion that the Visa Applicant has been involved in crimes against humanity, within the scope contemplated in section 501(6)(ba)(iii) of the Act. This reasonable suspicion is based on Mr Adekoya’s detailed 2002 Statement at interview to Department officers in which he not only offered that he had been an active participant, office-holder and financial supporter of a violent organization, the OPC, but also ‘led’ the burning of a house with the result that the inhabitants were killed. In that statement he provided explicit details about when he had joined the OPC, when he was promoted, who the victim was, details about reconnaissance of the victim’s house and physical details about the house itself. It stretches credulity too far that he could have made all these details up on the spot.
Apart from this particular account of the burning of a house containing an alleged informant and his wife and children, Mr Adekoya stated that he had participated in ‘many acts’ where houses were burnt down.
Even if the Tribunal were for a moment to accept the claim that he made-up the claim at interview, the fact that he did not repudiate involvement in this violent organisation at his next interview with the Department in 2005, but instead simply re-cast the events and said he was present but not directly involved when a victim had petrol poured over him, in order to pursue an immigration outcome, adds verisimilitude to the first account he gave to officers being a factual version.
The Tribunal founds this reasonable suspicion of the Visa Applicant being involved in crimes against humanity not only on that 2002 statement, but on the subsequent statements up until the hearing, all of which acknowledged some level of membership of the OPC, albeit Mr Adekoya’s specific evidence on the level and extent his involvement in its violent activities has successively shifted. The Tribunal considers that a reasonable person, presented with this information, would form in his or her mind a reasonable suspicion that Mr Adekoya had undertaken the acts, or some of the acts, or some of the things, that he initially claimed he did.
Finding in relation to the character test
Annex A, Section 2 of the Ministerial Direction deals with application of the character test. It states, at (4)(1) and (2):
(1)A person does not pass the character test if the Minister reasonably suspects the person has been, or is involved in, conduct constituting….a crime against humanity, a war crime…
(2)In order to fail this limb of the character test, a person is not required to have been convicted of an offence constituted by the conduct.
The Tribunal, having a reasonable suspicion that Mr Adekoya has been involved in conduct constituting a crime against humanity, finds that the Visa Applicant therefore does not pass the character test.
DISCRETION TO REFUSE TO GRANT THE VISA
The Ministerial Direction – Direction No. 79
Having found that Mr Adekoya does not pass the character test, the next step is for the Tribunal to consider whether the discretionary power to refuse to grant him a visa should be exercised. In considering the exercise of the discretion, the delegate consulted a written ministerial direction, Direction No. 65. That direction ceased to have effect on 28 February 2019 and was superseded by a new written direction, Direction No. 79, issued under section 499 of the Act. Under section 499(2A) the Tribunal, as a decision-maker, must comply with the Direction, noting that section 499(2) inhibits the Minister from giving directions that would be inconsistent with the Act.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Relevantly, the Direction includes the following principles at paragraph 6.3:
(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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(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, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to 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 risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should 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 or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part B, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part B are set out in paragraph 11(1) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’
Other considerations set out in paragraph 12(1) of the Direction are: ‘International non-refoulement obligations’; ‘Impact on family members’; ‘Australian business interests’; ‘Impact on victims;’ and ‘Impact on Australian business interests.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal considered each of the primary considerations and, as relevant, the other considerations.
Evidence at Hearing
Mrs Nadine Adekoya
Mrs Adekoya is an Australian citizen. She submitted written material (GD, p 35) advising that she first met Mr Adekoya in September 2002. They were both working at a nursing home in Melbourne. She was a permanent part-time aged care assistant. Mr Adekoya was placed there in a similar role by an employment agency. They formed a friendship, and began a relationship about two months later. They married in May 2003 at a church in Melbourne (GD, p 108).
There are two children of the marriage, both boys. The older son, ‘CX’ was born in 2004 in Melbourne. The younger son, ‘JX’ was born in 2011, also in Melbourne. Both children are Australian citizens (GD, pp 109-112).
Mrs Adekoya told the Tribunal that the last time she saw her husband was during the 2017-18 Christmas holidays when she visited him in South Africa for about three and a half weeks. On this occasion she was not accompanied by CX and JX; she told the Tribunal that the last time they saw their father was in the 2014-15 Christmas holidays.
Mrs Adekoya told the Tribunal that she had regularly visited Mr Adekoya since he departed Australia. She said she visited him in 2007 for three months, accompanied by CX; in 2010 for three months accompanied by CX for part of that time, and for three months in 2012, accompanied by both boys. She confirmed that Mr Adekoya has been absent from Australia since 2004.
Mrs Adekoya said she spoke to her husband twice a day, and that CX and JX spoke to him about once a week. At the time of the hearing, Mrs Adekoya said that CX was in grade 9 at school, and JX was in grade 2.
Mrs Adekoya said that the absence of their father had a physical and emotional effect on both CX and JX. She told the Tribunal about a recent incident where JX had almost been lost by drowning, that CX had chronic fatigue syndrome and that JX had special health needs requiring occupational therapy and assistance with written expression. She said that JX had been formally diagnosed with ‘global delay.’
In terms of CX, Mrs Adekoya said he was doing ‘ok’ at school but needs his father. She said that JX goes to a special school which has smaller classes. Mrs Adekoya told the Tribunal of the struggles she has faced rearing her two sons in the absence of Mr Adekoya. She said they all currently live with her ageing mother, but that was not a long-term solution.
Under cross-examination, Mrs Adekoya said that she had been unaware of the allegations of involvement in crimes against humanity against her husband until after they had made the joint application for a partner visa. She said that her understanding was that Mr Adekoya had made admissions which he should not have, and she was of the view that he was not involved in the activities, as he had originally claimed.
Mrs Adekoya said that she was aware that the Visa Applicant had been married before she met him and also that he had two other adult children by a separate de facto relationship. She said that Mr Adekoya had worked as a hairdresser while he lived in South Africa and as a land surveyor while he lived in Nigeria. Mrs Adekoya said that her husband returned to Nigeria from South Africa in 2016 to be closer to his sister who lives there. She said he also has a sister who resides in the United Kingdom.
Mr Sammy Adekoya
Mr Adekoya told the Tribunal that he spoke to his wife every day and speaks to CX and JX once a week, usually on the weekend and usually by a video-call.
Mr Adekoya said that he had returned to Nigeria but was not currently employed. In answer to a direct question from the Tribunal as to why he returned to Nigeria, Mr Adekoya said he ‘just decided to go back, I am not a criminal there or here.’ He said that the situation in South Africa had also become more volatile, which was another reason he had returned to his home country. He said that he lives around ten minutes’ drive from where he lived before he left Nigeria to go to Cameroon.
Consideration of the Direction
Primary consideration – Protection of the Australian community from criminal or other serious conduct (paragraph 11.1)
The Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Direction makes clear that violent crimes are viewed seriously; the Tribunal interprets this to include serious conduct which, on the facts, would plainly constitute a crime. The Direction also states, at paragraph 11.1.1(1)(i) that the Tribunal must have regard to whether the non-citizen has provided false or misleading information to the Department. It is plain, from his own admissions at this hearing, that Mr Adekoya has on several occasions provided information to the Department that he now says is false or misleading. His own solicitor describes claims that Mr Adekoya made as ‘fabricated,’ in arguing that they should now be disregarded as pure exaggeration without substance, in his quest to obtain a visa to come to Australia.
The Tribunal concludes that, having found that it reasonably suspects that Mr Adekoya has been involved in crimes that would amount, if proven, to murder, coupled with his own evidence that he has submitted multiple false statements to the Department, this is serious conduct that weighs against the grant of a visa.
In respect of the risk to the Australian community should Mr Adekoya commit further offences or engage in other serious conduct, Mr Sorensen argued that there was insufficient evidence of a threat to the community posed by the Visa Applicant. Mr Sorenson submitted that police certificates from The Nigeria Police (GD, pp 76-77) and the South African Police Service (GD, pp 78-79) disclosed no criminal offending. The Tribunal accepts this evidence, as far as it goes. However, the certificates issued by the Nigeria Police make clear that they are only valid for a period of three months from date of issue, and relate, in Mr Adekoya’s case, specifically to him travelling to South Africa, and in a 2013 certificate provided in 2017 (ASD), for travel to Australia.
The South Africa Police Service certificates record that no convictions in that country are recorded against Mr Adekoya, but there is no suggestion before the Tribunal, including by the Respondent, that the Visa Applicant had committed any offences in that country.
These certificates are not especially probative, because on any of the several versions of events that Mr Adekoya has given to officers of the Department, he has never said that he was apprehended in Nigeria; in fact in his initial story he said that he fled, after the alleged burning of the house, to Cameroon and thence to South Africa. It is also relevant that the last part of section 501(ba) of the Act provides for failure of the character test on reasonable suspicion of, inter alia, a crime against humanity or a war crime:
…whether or not the person, or another person, has been convicted of an offence constituted by the conduct…
(Emphasis added.)
The Direction requires the Tribunal to consider the nature of harm to individuals should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the person so engaging. The Direction states, at the end of paragraph 11.1.2 (1):
Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that is may be repeated may be unacceptable.
(Emphasis added.)
The nature of harm if Mr Adekoya became involved again in the same or similar murderous conduct which he said in 2002 he had ‘led’ is manifest. It is difficult to ascertain what the likelihood of Mr Adekoya re-offending is, but the reasonable suspicion of the Tribunal that he was actively involved in a very violent organisation that carried out atrocities against civilians weighs against him in this assessment.
The Tribunal does not accept submissions by counsel for the Applicant that this might constitute an ‘irrational’ linkage in terms of assessing risk. While the particular circumstances may not be likely to present in Australia, the fact that the Visa Applicant is reasonably suspected of carrying out such an atrocity, and has then given several conflicting stories to Department officers about his conduct and history, inclines the Tribunal to the view that there is a risk of criminal or serious misconduct, and, taking all the information into account, it is a real risk. There has been a conspicuous lack of honesty in Mr Adekoya’s interactions with immigration officials which illustrates his desire to say whatever is most beneficial to him, in the particular case and at the particular time, whether or not it is the truth. This lack of honesty axiomatically contributes to a risk of re-offending.
The Direction also requires a decision-maker to take into account the duration of the intended stay in Australia. The visa for which Mr Adekoya applied was in contemplation of permanently settling in Australia, with a pathway from that visa to a permanent partner visa, and thence to a pathway to Australian citizenship. The visa is not for a short stay.
The Tribunal finds, cumulatively, based particularly on the conduct first volunteered by Mr Adekoya (notwithstanding his various amendments and ultimate retraction of it over a period of some 17 years), this primary consideration weighs in favour of exercising the discretion to refuse to grant a visa. The Tribunal considers that the conduct it reasonable suspects the Visa Applicant undertook fits within the description of paragraph 6.3(4) of the Direction, in that it is so serious that the harm it would cause were it to be repeated creates a risk that is unacceptable.
Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 11.2)
The two minor children relevant in this consideration are the sons of Mr and Mrs Adekoya, ‘CX’ who was born in July 2004 and is now aged 15, and ‘JX’ who was born in July 2011 and is now aged 8. Both are Australian citizens.
Mr Adekoya also has two older children from a previous relationship, a son born in 1982 and a daughter born in 1984. Both of them reside in South Africa and neither of them is a minor, so they are not relevant in this particular consideration.
The Direction requires that, where there are two or more relevant children, the best interests of each should be given individual consideration to the extent that their interests may differ.
In terms of JX, the Tribunal had before it a medical history dated 28 July 2015 from Dr Carol Chaivachirasak, general practitioner (GD, p 104). She records JX as having five medical conditions. A medical letter dated 23 February 2016 from Dr Sue Gibb, consultant paediatrician, at The Royal Children’s Hospital Melbourne, states:
I write in support of an application for [JX’s] father to be granted a visa to stay in Melbourne. [JX] is now 4½ years old. He has significant developmental disability in relation to a congenital syndrome [condition name redacted], a syndrome associated with craniosynostosis and developmental disability.
[JX] 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. His mother his struggling to meet his care needs as a single parent and I would advocate strongly for the benefits of her receiving the support of her partner in the care of [JX] who has significant additional needs.

The Tribunal notes evidence at the previous hearing before the Tribunal from Mrs Adekoya that JX’s hearing problems have now been resolved, or largely resolved, by medical intervention.
The Direction requires the Tribunal to consider the nature of the relationship between the child and the non-citizen, and that less weight should generally be given where there have been long periods of absence or limited meaningful conduct (paragraph 11.2(4)(a)).
In respect of JX, the Tribunal accepts Mrs Adekoya that he has regular video and phone contact with his father, and that JX has visited him for a relatively lengthy period in South Africa in 2012, when he was very young. The Tribunal finds that JX’s best interests would be served by the Visa Applicant being physically present in his life, and places weight on the professional opinion of Dr Gibb in this regard.
In respect of CX, the August 2019 medical report of Dr Ken McHenry (Exhibit A2) disclosed that CX has chronic fatigue syndrome and ‘a strong depression component in the last 12 months’. Mrs Adekoya said that CX was progressing at school. It would seem to the Tribunal that it would be in his interests for Mr Adekoya to be present in his life, notwithstanding his father’s physical absence has, except for relatively brief visits to South Africa, been a feature of all of CX’s life.
The Tribunal finds that the best interests of CX and especially JX would be served by Mr Adekoya being granted a visa. The weight that would normally be placed in this instance on uniting biological children with a parent is, however, in this case significantly lessened because of the geographical absence of Mr Adekoya from Australia since 2004, that is, before both children were born.
Primary consideration – Expectations of the Australian community (paragraph 11.3)
This part of the Direction sets out that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a person has breached, or where there is an unacceptable risk that they will breach, this trust or where the person has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. The Direction states that “decision-makers should have due regard to the Government’s views in this respect.”
In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Court of the Federal Court of Australia considered how decision-makers should approach this primary consideration in the Direction. The Court was considering the equivalent part of a superseded direction, but the wording in the current Direction is relevantly identical. Two of the three judges in FYBR, Charlesworth and Stewart JJ, held that this part of the Direction expresses a ‘norm.’ It is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations are deemed – they are what the executive government has declared in the Direction are its views; they are not expectations that may be derived from conducting some other evaluative process.
Stewart J (who agreed with the conclusions of Charlesworth J but wrote his own reasons) stated, at [100]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
. non-citizens will obey Australian laws when in Australia;
.it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
.in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
Stewart J also stated (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.
In this case, the Tribunal has found that it has a reasonable suspicion that Mr Adekoya has been involved in a crime against humanity. Such actions would objectively be seen as completely contrary to the underpinning of a civilised society, such as Australia’s.
The Tribunal finds that this primary consideration weighs strongly in favour of exercising the discretion to refuse the visa.
Other consideration – International non-refoulement obligations (paragraph 12.1)
The Tribunal finds that this consideration is not engaged. Apart from the fact that as stated above Article 1F of the Refugee Convention excepts the general obligations of parties to the Convention to protect persons where there are serious reasons for considering that the person has committed a crime against humanity, Mr Adekoya stated during his oral evidence that in 2016 he chose to return to his country of citizenship, Nigeria, and is resident there. He did not express any claims of danger or persecution.
The Tribunal finds that this consideration, not being engaged, weighs neutrally.
Other consideration – Impact on family members (paragraph 12.2)
The Direction requires the Tribunal to consider the impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely.
Relevant persons that the Tribunal identifies in this consideration are the Visa Applicant’s wife, Mrs Nadine Adekoya, and her mother, Mrs Glenda Jeffery.
In addition, the Tribunal had before it evidence from four friends of Mr and Mrs Adekoya: Ms Shirley Scott; Mr Francis Awopegba; Mr Kayode Lawal and Mr Toyin Abbas, all of whom are Australian citizens (GD, pp 138-152).
Mrs Adekoya is an Australian citizen (GD, p 137). The Tribunal found her evidence truthful and relatively compelling. It was clear to the Tribunal that she entered into her marriage in complete good faith and that she has maintained that relationship, notwithstanding the significant geographical barrier, to this day.
In her evidence, Mrs Adekoya impressed the Tribunal as a good parent, facing many of the challenges that other single or separated parents do on a daily basis, while providing as best she can for two teenage boys, one of whom has had significant medical hurdles to overcome. The Tribunal accepts her evidence that she maintains daily contact with her husband, and has done so consistently.
Dr McHenry stated (Exhibit A2) that Mrs Adekoya is suffering from stress and anxiety, and it is reasonable to conclude that part of the reason for these conditions may stem from the uncertainty about the immigration outcome for her husband.
Mrs Jeffery made a statement in support of Mr Adekoya’s visa application (GD, pp 138-139) in which she stated she speaks to the Visa Applicant by telephone on occasions and that her daughter and CX and JX all live with her. She expressed the view that Mr and Mrs Adekoya should be given the chance to live together as a family.
Ms Scott, a long-standing friend of Mrs Adekoya who has met Mr Adekoya, stated (GD, p 141) that she sincerely believed that Mrs Nadine Adekoya is in need of genuine support in the care and education of their two sons, CX and JX.
Mr Awopegba stated (GD, p 144) that he first knew Mr Adekoya and subsequently met Mrs Adekoya when they visited him at his home in 2002. He attended their wedding and attested to the genuine nature of the marriage between the Review Applicant and the Visa Applicant.
Mr Lawal stated (GD, p 147) that he was a former work colleague of Mr Adekoya when they both worked for a nursing agency. He attended the wedding of Mr and Mrs Adekoya and would visit them at their home, and he has maintained telephone contact with Mr Adekoya since he left Australia.
Mr Toyin Abbas stated (GD, p 150) that he met Mr and Mrs Adekoya at a social event and they became family friends. He was supportive of them being reunited.
The Tribunal finds, particularly because of the evidence of Mrs Nadine Adekoya, that this consideration weighs in favour of granting the visa, and relatively heavily so.
Impact on victims (paragraph 12.3)
This part of the Direction requires the Tribunal to consider the impact of a decision to grant a visa on the Australian community and any victims of a person’s criminal behaviour where that information is available. The Tribunal finds that this consideration is not engaged and therefore weighs neutrally in this assessment.
Impact on Australian business interests (paragraph 12.4)
The Tribunal is directed to consider the impact on Australian business interests if a non-citizen’s visa is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery or a major project or important service in Australia.
Mr Adekoya gave evidence that he worked briefly in Australia for an agency which placed him at a nursing home. He undertook a vocational certificate in Australia. The work undertaken by aged care workers across Australia is important and under-valued, but in the particular circumstances the Tribunal does not think that refusal of Mr Adekoya’s visa rises to the level contemplated by the Direction, because of the relatively brief time he worked in Australia and the years that have since passed since he was employed in this country.
The Tribunal finds that this consideration weighs neutrally in this assessment.
SUMMARY AND CONCLUSION
As set out above in these reasons, the Tribunal has found that Mr Adekoya fails the character test under section 501(6)(ba)(iii) of the Act. The Tribunal has also found that two of the primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh against granting the visa. The Tribunal has found that the best interests of affected minor children weighs in favour of granting the visa, but not as heavily so as might generally be the case in the circumstances, given the length of time the Visa Applicant has been out of Australia, which predates the birth of both of the relevant children. His involvement in their lives has effectively been remote.
In respect of the other considerations the Tribunal has found that three of them are not engaged in this assessment. The sole other consideration in the Direction that is engaged, the impact on family members in Australia, weighs in favour of granting the visa, and relatively heavily so, because of the interests of Mrs Nadine Adekoya.
The Tribunal is not constrained only to consider the stipulated considerations set out in the Minister’s Direction. It may also take into account any other consideration relevant under the Act. In this case, a significant factor has been the willingness of the Visa Applicant to calibrate his story to his own advantage, in an attempt, as he openly admitted in oral evidence, to achieve an immigration outcome. His cavalier attitude to the truth is a significant factor that counts against him, especially as the kernel of his original statement to the Department detailed an horrific act, in which he said he was directly involved.
The Tribunal is mindful in this case of the significant effect Mr Adekoya’s absence has had on his spouse and their children, but has concluded, weighing all the circumstances before it, that the discretion in section 501(1) of the Act, being enlivened to consider whether or not to grant the visa, the correct exercise of that discretion in this case is to refuse the visa.
DECISION
The Tribunal decides to affirm the decision under review, being the decision of 25 August 2016 to refuse the Applicant’s Partner Provisional (Class UF) visa.

132.

133.    I certify that the preceding 131 (one hundred and thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

134.

……[sgd]……………………………………………
Associate
Dated: 8 April 2020

Date of hearing:

30 September 2019

Advocate for the Applicant:

Mr R Sorensen

Solicitors for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Goz Chambers Lawyers

Mr C Orchard

Sparke Helmore Lawyers