Iyangbe v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 347
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Iyangbe v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 347
File number: ADG 391 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 10 May 2023 Catchwords: MIGRATION – Application for review of a decision of the AAT affirming a decision to cancel the applicant’s partner visa – where the applicant is said to have failed to comply with his obligation to give correct answers in a visa application – where the applicant is a citizen of Nigeria – where the applicant was married to an Australian citizen – where the applicant engaged in sexual intercourse with a woman in Nigeria during his marriage – where the applicant believed he had fathered a child as a result - where the Tribunal did not accept that the applicant’s relationship with the woman in Nigeria was only limited to one sexual encounter – where the Tribunal did not accept that the applicant’s marriage was to the exclusion of all others – where the applicant submitted the Tribunal failed to identify what question the applicant had answered incorrectly – where the applicant submitted that there was no intelligible justification for the Tribunal’s conclusion that the applicant’s marriage was not to the exclusion of all others – court is satisfied none of the grounds are made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 5F, 101(b) Cases cited: Cao v Minister for Immigration & Anor [2007] FMCA 225
Minister for Immigration and Multicultural Affairs, Re; Ex parte Holland [2001] HCA 76
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 18 April 2023 Place: Darwin Counsel for the Applicant: Ms Maddocks Solicitor for the Applicant: Cejo Consulting Counsel for the Respondent: Mr McLaurin Solicitor for the Respondent: Minter Ellison ORDERS
ADG 391 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UYI GABRIEL IYANGBE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
10 May 2023
THE COURT ORDERS THAT:
1.The application filed 24 December 2020 be dismissed.
NOTING:
A.The First Respondent seeks costs in the sum of $5,900. If the Applicant seeks a different costs order he should notify the Court within seven (7) days failing which the orders sought by the first Respondent will be made.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Young
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) to affirm a decision of the Minister's delegate to cancel the applicant's Partner visa issued on 11 May 2016. The visa was cancelled because the applicant was said to have failed to comply with his obligation under section 101(b) of the Migration Act (the Act) to give correct answers in a visa application.
In an application dated 7 April 2015 for a permanent Partner visa the applicant was asked, in a question adopting the language in section 5F of the Migration Act which defines "spouse", whether he and the sponsor still had a mutual commitment to a shared life as a married couple to the exclusion of all others. The applicant answered “yes”.
The applicant also allegedly failed to provide notice to the Department of a change of circumstances, said to be the birth of his child.
In the reasons below I will use the first names of the applicant’s partners.
The applicant married Anette, an Australian citizen, in 2013 and was granted various visas by virtue of that relationship. Later the applicant developed a relationship with Daisy, a Nigerian citizen, resident in Nigeria.
The chronology of the matter is important as follows:
25/1/2013 applicant first arrived in Australia with a Prospective Marriage (subclass 300) visa 13/4/2013 applicant and Anette marry 30/5/2013 applicant applied for Combined Partner (subclass 820/801) visa 30/3/2014-13/4/2014 applicant travelled to Nigeria and engaged in a sexual relationship with Daisy c. March or April 2014 Paul conceived 29/4/2014 - 28/5/2014 applicant in contact with Daisy by telephone from Australia June 2014 Daisy says she realises she is pregnant
17/12/14 Paul born 26/2/2015 applicant provides Daisy’s address as his own in draft application for Nigerian passport and nominates Paul as his next-of-kin 7/4/2015 applicant applies for Partner visa sponsored by Anette in which incorrect answers allegedly given 11/5/2016 applicant granted a Partner (Subclass 801) visa 5/7/2016- 28/7/2016 applicant visits Nigeria, photos of applicant with Paul are uploaded to Facebook 7/7/2016 Daisy says the applicant accepted Paul as his son 30/7/2016 applicant and Anette cease living together 1/8/2016 applicant and Anette live separately and apart from this date 2/5/2017 Daisy says her relationship with the applicant commenced 29/6/2017 Daisy says the applicant proposed marriage to her 22/4/2017 applicant applies for Australian citizenship 22/7/2017 applicant and Daisy go through a marriage ceremony in Nigeria 10/9/2017 applicant advises Department in relation to Anette that ‘we are separated to be divorced 17th October 2017’ on Notification of changes in circumstances form; in the same form he refers to Daisy as his ‘current partner’ c. October 2017 applicant and Anette divorce October 2017 Paul’s birth registered in Nigeria and applicant acquires birth certificate for Paul which records him as Paul’s father 2/11/2017 Daisy and Paul apply for Visitor Short Stay Visa (sponsored by applicant); application refused 24/10/2018 Notice of Intention to Consider Cancellation under s 109 Migration Act issued 2019 applicant obtains DNA test for Paul proving Paul is not his biological child
applicant’s relationship with Daisy ceases
In January 2013 the applicant entered Australia on a Prospective Marriage Visa sponsored by Anette. In April 2013 the applicant and Anette married. In May 2013 the applicant applied for a Partner visa. In June 2013 the applicant was granted a temporary Partner visa.
Between 30 March and 13 April 2014 the applicant returned to Nigeria. He engaged in sexual intercourse with Daisy. The applicant asserts it was an isolated instance and not part of wider relationship. However, there is evidence that the applicant and Daisy were in telephone contact after his return to Australia.
On 17 December 2014 a child, Paul, was born to Daisy.
On 26 February 2015 the applicant completed a draft Nigerian passport application giving Daisy's address as his permanent address in Nigeria and nominating Paul as his next-of-kin.
On 7 April 2015 the applicant was asked on a Departmental form, "Do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife, or as de facto partners to the exclusion of all others?”. He answered “yes”. (It may be noted that a comma, incorrectly placed after the word “wife”, appears in the original).
In July 2016 the applicant visited Nigeria and spent time with Paul and Daisy. Daisy said she began to use the applicant’s surname from this time. The applicant returned to Australia and on 31 July or 1 August 2016 the applicant and Anette separated when he left the former matrimonial home.
On 17 May 2017 Paul's birth was registered in Nigeria with the applicant recorded as the father. On 22 July 2017 the applicant and Daisy married in Nigeria. If, as seems to be the case, the applicant was still married to Anette, although separated, this was probably an invalid marriage.
The applicant notified the Department on about 10 September 2017 that he and Anette were separated “to be divorced 17th October 2017”. The applicant and Anette were subsequently divorced.
On 2 November 2017 the applicant sponsored Daisy and Paul for tourist visas to visit Australia. They did not travel because, it appears, the visa application was refused.
Sometime after this the applicant’s relationship with Daisy ceased. In 2019 a DNA test showed Paul is not the applicant's biological child.
THE APPLICANT’S FACTUAL SUBMISSIONS AND THE TRIBUNAL’S FINDINGS
The applicant asserted that his relationship with Daisy was an isolated sexual encounter in 2014 while he was visiting Nigeria. Daisy was said to be a friend of his sister. The applicant said that apart from this isolated sexual encounter with Daisy in 2014 he had no romantic relationship with her until they went through a form of marriage in Nigeria in 2017. The applicant said that Daisy misled him as to the paternity of Paul, as was borne out by the subsequent DNA test. He said he was persuaded to provide financial support for Paul from about the time of his birth. He said when he went to Nigeria in 2016 it was to check on the welfare of the child and at that time, despite his doubts, he was persuaded to accept that the child was his. He said that from this time Daisy began to use his surname but without his permission. He said he began to consider whether Paul could come to Australia for a better life.
The applicant said that he told Anette that he had an ex-nuptial child. He said his marriage to Anette continued as a genuine relationship. He said his later separation from Anette on 1 August 2016 was the result of threats from Anette’s son, who was a drug user, and fears for his own safety. He implied, at least, that the separation and subsequent divorce from Anette was unrelated to his relationship with Daisy.
In summary, the applicant asserted that he believed he had fathered a child as a result of an isolated sexual encounter in Nigeria and was misled by the mother of the child and he wished to take responsibility for what had occurred and do his best to help the child. He said he had no other relationship with Daisy and Daisy had made it clear to him in 2017 that the child could only come to Australia if he married her and brought her with him. He said that his answer to the question asked of him on 7 April 2015 about the nature of his relationship with Anette was the correct answer.
The Tribunal accepted that if the applicant's relationship with Daisy consisted of no more than an isolated sexual encounter and subsequent arrangements for the welfare of a child produced from an unplanned pregnancy then that would not mean that the applicant's answer was incorrect. However, the Tribunal did not accept that the relationship between the applicant and Daisy was as limited as the applicant asserted. The Tribunal pointed to five factors, in particular, which permitted it to infer that the relationship between the applicant and Daisy was much more substantial and was inconsistent with his marriage to Anette constituting a mutual commitment to a shared life as a married couple to the exclusion of all others.
These points were:
1. the intimate relationship in 2014 and the applicant’s subsequent acceptance of the possibility that the child was his biological child, prior to the DNA test.
2. the use of the applicant’s surname by Daisy in her Facebook account since, according to the Tribunal’s finding, July 2014. The Tribunal was not satisfied that the account was fake as Daisy claimed or that Daisy had no involvement with it, given that it displayed photographs and other personal information. The Tribunal did not accept the applicant's claim that Daisy had intentionally created the account to create a false impression of the relationship.
3. the applicant moving out of the family home and ceasing to share the household with the sponsor a very short time after being granted a permanent visa, coupled with the applicant's claim that he commenced the relationship with Daisy shortly after being granted the permanent visa.
4. the applicant’s admitted contact with Daisy in 2014 when the child was conceived and from 2016 once he was granted a permanent visa.
5. the applicant's nomination of Daisy's address as his permanent address in Nigeria in his draft passport application in March 2015 and the applicant's identification of Paul as his next-of-kin in the same draft application. Even though that draft form was not ultimately used, the applicant's nomination of Paul and Daisy's contact details was significant. The Tribunal accepted that the recognition of the child did not necessarily imply the applicant was in a relationship with the child's mother. However, it was relevant in the Tribunal's view to the assessment of the applicant's credibility and the veracity of his claims.
The Tribunal inferred from these matters that the applicant's relationship with Anette was not to the exclusion of all others when he answered the question in 2015 and accordingly his answer was incorrect. The Tribunal found that he had failed to comply with section 101 of the Act. The Tribunal found that, as the child was subsequently shown not to be the applicant’s child, he was not required to notify the Department of that change.
The Tribunal considered whether it ought to exercise a discretion to not cancel the visa, as cancellation was not mandatory pursuant to section 109(2) of the Act. In summary, the Tribunal concluded that there were factors which militated in favour of cancellation of the visa. These discretionary matters were not the subject of review.
The grounds of review are as follows:
1. The Tribunal made an error of law as it has not satisfied itself of the jurisdictional precondition in s 101(b) of the Migration Act 1958 (Cth) as it has failed to:
•Identify the question to which an incorrect answer was provided by the Applicant and find that incorrect information was given to that question;
•Substituted a question of the Tribunal’s own drafting in place of a question or questions asked in the application when determining whether answers to the question asked was incorrect;
•Consider the question which the Applicant answered in his application when determining whether or not the applicant had given an incorrect answer; and/or
•Applied a standard different to the contents of the question asked to the Applicant in the application when determining whether or not incorrect information had been provided.
2. The Tribunal entered into jurisdictional error in concluding that incorrect information had been provided as it was without reasonable or rational basis to conclude that the Applicant had provided incorrect information in his application on the factors which it had identified in paragraph [39] – [41] of the decision.
3. The Tribunal entered into jurisdictional error in concluding that incorrect information had been provided without reasonable or rational basis to conclude that the Applicant had provided incorrect information in his application as it failed to consider the question which the Applicant answered in his application.
4. The Tribunal entered into jurisdictional error in concluding that incorrect information had been provided without reasonable or rational basis to conclude that the Applicant had provided incorrect information in his application as it applied a meaning of “to the exclusion of all others” that was not open to it on the facts of the application.
5. The Tribunal has entered into jurisdictional error as it has no rational or reasonable basis for finding that incorrect information was given where:
•it has not made any findings about the relationship between the Applicant and his wife; and/or
•it has implicitly made findings about the relationship between the Applicant and his wife on irrelevant information.
6. The Tribunal entered into jurisdictional error in concluding that incorrect information had been provided on an unreasonable or irrational basis as it engaged in inconsistent and contradictory reasoning on an arbitrary basis without providing adequate reasons for the distinction at [33] and [34] of the decision.
CONSIDERATION
Ground 1
In Ground 1(a) the applicant submitted that the Tribunal failed to identify what question was asked and whether the answer was incorrect. The submission asserted that the Tribunal appeared to have conflated two questions in its identification of the question incorrectly answered by the applicant:
(1) “Is the applicant still in a genuine and continuing relationship with the sponsor?” and
(2) “Do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife, or as de facto partners to the exclusion of all others?”.
The applicant answered “yes” to both questions.
At paragraph 41 of the Tribunal’s reasons it found that:
… from 2014, the applicant’s relationship with the sponsor was not to the exclusion of all others. The Tribunal finds that the applicant gave an incorrect answer in his 2015 application when he claimed that his relationship with the sponsor was still ongoing and to the exclusion of all others. The Tribunal finds that the applicant did not comply with s 101 of the Act…
The applicant submitted that this passage contained elements from both questions: the reference to “ongoing” should be seen as a synonym of “continuing” from the first question and the reference to “the exclusion of all others” was from the second question. It was said that the two questions were improperly conflated by the Tribunal.
It is correct that the Tribunal, in stating that it was satisfied that the applicant answered incorrectly, did not quote or reproduce the exact words of the second question in its reasons. However, the reasons of the Tribunal are to be read as a whole. At paragraph 31 the Tribunal said, speaking of the applicant’s relationship with the sponsor, that “… the Tribunal’s concern is whether it was mutually committed and to the exclusion of all others”. This is a substantially accurate summary of the second question. In the following two sentences the Tribunal accepted, consistently with authority[1], that “a single act of infidelity” did not mean that the applicant’s relationship with the sponsor was not “genuine or exclusive”. The word “genuine” also appears in the first question but, in the context of paragraph 31, the Tribunal was directly responding to a submission that the sponsor “declared herself that the relationship was genuine”. In the following paragraphs the Tribunal discussed, in particular, whether the applicant’s relationship with the sponsor was “to the exclusion of all others”. I am satisfied that, while the Tribunal used imprecise language at times, it was consciously directing itself to the second question, and particularly the second element of that question throughout its reasons.
[1] Minister for Immigration and Multicultural Affairs, Re; Ex parte Holland [2001] HCA 76, [16]
I am also satisfied, consistently with the conclusion above, that the Tribunal identified the applicant’s answer to the second question as incorrect, not his answer to the first question, and thus satisfied itself that the applicant had failed to comply with the requirement of s 101(b) of the Act by filling in his application form in such a way that no incorrect answers were given or provided.
In Ground 1(b) the applicant makes a similar and, in part, duplicated argument. He submits that by reference to the language of paragraphs 25, 41 (the paragraph said to found the argument in Ground 1(a)) and 44 of the Tribunal’s reasons it “can be inferred” that, rather than identifying a specific question incorrectly answered by the applicant, the Tribunal impermissibly and inaccurately formulated and posed its own questions. These were said to be:
1. Is the applicant’s relationship with the sponsor to the exclusion of all others?;
2. Is the applicant’s relationship with the sponsor both ongoing and to the exclusion of all others? and
3. Is the applicant in an exclusive relationship with the sponsor?
I reject that submission. Consistently with my conclusion in relation to Ground 1(a), I am satisfied that the Tribunal identified the second question as the one to which the applicant gave an incorrect answer. I am satisfied, for the reasons given above, that the Tribunal substantially accurately summarised that question and its component elements and consciously directed its attention to those elements in its reasons.
Ground 1(c) advances substantially the same argument as Grounds 1(a) and (b), that is, the Tribunal failed to consider the content of the question asked of the applicant which he is said to have answered incorrectly. The gist of the applicant’s submission is that the Tribunal failed to identify the question asked. For the reasons given I reject that submission.
Ground 1(d) advanced an argument that, having regard to the position of the comma in the second question, the criterion “to the exclusion of all others” applied only to de facto couples. The applicant expressly abandoned that ground.
Grounds 2, 3 and 4
These grounds may be conveniently dealt with together as they raise the argument that there was no evident or intelligible justification for the Tribunal’s conclusion that the marriage between the applicant and the sponsor was not to the “exclusion of all others”.
The Tribunal set about its task of review by considering whether or not the evidence before it in December 2020, primarily the evidence about the history of the applicant’s relationship with Daisy, permitted an inference that the applicant and Anette, at the time the relevant question was asked and answered in April 2015, did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others.
The Tribunal did not analyse the components of this question but evidently considered that an essential element of the relationship described by the question was that it be to the “exclusion of all others”. The Tribunal correctly said that an isolated sexual encounter, as the applicant described his relationship with Daisy prior to 2017, did not mean his answer was incorrect. This is consistent, for example, with the decision of Kirby J in Minister for Immigration and Multicultural Affairs, Re; Ex parte Holland [2001] HCA 76, [16] and of Judge Riley in Cao v Minister for Immigration & Anor [2007] FMCA 225 where she said:
42. In my view, the correct interpretation of the relevant regulations is that it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others. The regulations mean that a person is not a spouse as defined if he or she is party to another marriage-like relationship. Sex is only one part of such relationships and is obviously not unique to such relationships. Sex does not, of itself, mean that the relationship in which it occurs is a marriage-like relationship. The regulations do not exclude a person from being a spouse as defined if he or she engages in an extra-marital sexual encounter, provided that it is not in the context of a second marriage- like relationship and provided that he or she continues to have a commitment to a shared life as husband and wife with his or her spouse.
43. It is a matter of common knowledge that there are people who remain in their marriages for 20 or 30 years or more but who nevertheless during that time have numerous, short term, extramarital sexual encounters involving no significant emotional investment. It is also a matter of common knowledge that, sometimes, a person has an extramarital affair which ends after a time and the marriage continues. In other cases, a person who has an extramarital affair eventually leaves the marriage and goes on to build a new life as husband and wife with the person with whom he or she had the affair. In such cases, there is obviously a point where the commitment to the first marriage ends. It is a matter for the Tribunal as the finder of fact to determine in all of the circumstances of the particular case whether or not an extramarital sexual encounter of one of the parties to a marriage reflects a lack of commitment to a shared life as husband and wife with the other party to the marriage, and whether or not it reflects the formation of a second marriage-like relationship.
44. In my view, it was open to the Tribunal in this case to consider that an affair which was said to have lasted at least three months was indicative of a lack of the necessary commitment. Be that as it may. The Tribunal did not actually decide that there had been such an affair. Rather, the Tribunal considered that, in light of all of the evidence, and particularly the evidence set out in paragraph 55 of the Tribunal’s reasons for decision, it was not satisfied that there was a genuine spousal relationship in the circumstances of this case. The Tribunal was simply not satisfied of the necessary matters. There was no jurisdictional error in that. In all the circumstances, this ground is not made out.
In the factual context of this case the Tribunal undertook an assessment of a state of affairs existing in the past; the applicant’s relationship with Daisy in April 2015. In doing so the Tribunal substantially reflected the approach of Judge Riley in Cao. Implicitly it reasoned that if it could be inferred that a marriage-like relationship existed between the applicant and Daisy at that time then his relationship with the sponsor was not to the “exclusion of all others”, however that relationship might appear to the sponsor. The Tribunal rejected the applicant as a reliable witness and gave little or no weight to the statements of Daisy and the applicant’s brother. The Tribunal necessarily reasoned by inference from objective or uncontested facts.
The applicant’s telephone records show that he continued to telephone Daisy in Nigeria after his return to Australia in April 2014. The applicant said this was in fact to speak to his sister who was a friend of Daisy and did not have her own phone. The Tribunal was not satisfied that claim was true, although it did not find it was untrue.
The Tribunal listed five factors which supported a finding, contrary to the applicant’s claims, that the applicant’s relationship with Daisy was on foot before he was granted a Partner visa.
The first factor was the applicant’s acceptance that Paul was his child (prior to the DNA test in 2019 showing his paternity was excluded). The exact time this acceptance began is unclear but the Tribunal found that the applicant listed Paul as his next-of-kin in a draft passport application in February 2015, although he did not ultimately use the form.
The second factor was the Tribunal’s conclusion that Daisy used the applicant’s surname from 2014 in her Facebook account.
The third factor was that he separated from the sponsor shortly after obtaining permanent Partner visa and, according to the applicant, commenced (or recommenced) a relationship with Daisy soon after (presumably a reference to the applicant’s visit to Nigeria in 2016).
The fourth factor was the fact of the applicant’s sexual relationship with Daisy in 2014 and (apparently) again from 2016 when he travelled to Nigeria.
The fifth factor was the applicant’s provision of Daisy’s address as his permanent address in Nigeria in his draft application for a Nigerian passport in February 2015 (the document is undated but the Court Book index gives a date of 26.2.2015).
The Tribunal acknowledged that individually these factors may not indicate the nature of the applicant’s relationship with Daisy but taken together indicated that the applicant was in a relationship with Daisy since 2014, such that his relationship with the sponsor was not to the exclusion of all others at the time he answered the relevant question.
The applicant was critical of the probative value of each of these factors and submitted that they did not provide a rational foundation for the Tribunal’s conclusions.
In relation to the first factor it was said that this indicated nothing more than that the applicant had sex with Daisy on one occasion in 2014.
In relation to the second factor the applicant’s written submission claimed that the Tribunal acknowledged that it was equally plausible that Daisy’s Facebook account was genuine or fake and the factor was not probative. In my view this submission does not reflect the Tribunal’s finding. In fact, the Tribunal was not satisfied that Facebook account was fake or that Daisy was not involved in the creation of the account, as she had claimed.
In oral submissions counsel for the applicant made an additional submission said that the Tribunal’s conclusion that the use of the applicant’s surname by Daisy in her Facebook account commenced in 2014 was not supported by the evidence. It was said that, while a photograph of Daisy was recorded as having been uploaded to the Facebook account in 2014, the date that Daisy began to use the applicant’s surname as her own in the account could not in fact be ascertained. It was said that the name on the Facebook account would simply be the name shown at the time the account was accessed and a screenshot taken and that may have been when the Department first took an interest in the matter much later, possibly in about 2018. The Tribunal appears to have relied on a finding of the delegate in relation to this issue. It is not clear from the Tribunal’s decision or that of the delegate how that conclusion was reached. Daisy in her statement said that she began using the applicant’s surname from the time he returned to Nigeria in 2016, intending to give a social indication that the applicant was Paul’s father and, presumably, of her relationship with him. The Minister was given an opportunity to respond to that submission in writing but that submission took the matter no further. I accept there is some substance in the applicant’s criticism on this point but it is not possible to reach any definite conclusion.
In relation to the third factor it was said that the fact that the applicant separated from the sponsor shortly after being granted a permanent visa in 2016 and the applicant commencing (or recommencing) a relationship with Daisy a short time later says nothing about the applicant’s relationship with Anette when he answered the question on 7 April 2015.
In relation to the fourth factor the applicant submitted that it was in substance no different to the third factor with the same deficiencies.
In relation to the fifth factor it was submitted that this constituted no more than a general finding about credibility.
In summary, these factors establish:
(1)in March or April 2014 the applicant had a sexual relationship with Daisy which he believed resulted in the conception of a child who was born in December 2014.
(2)In February (or March according to the Tribunal) 2015 (before the applicant answered the question) the applicant said, in the draft form of an official document, that his permanent address in Nigeria was the same as Daisy’s address.
(3)Daisy began to use the applicant’s surname from, at the latest, 2016. The reason for this, it may be inferred, was because she wished to create the impression that the applicant was the father of her child and she considered she was entitled to use his surname because she had a marriage-like relationship with him.
(4)The applicant and the sponsor separated on 1 August 2016 soon after the applicant obtained a permanent visa in May 2016. Shortly after separating from the sponsor the applicant travelled to Nigeria to be with Daisy and Paul.
(5)The applicant admitted he was in contact with Daisy in 2014 and again from 2016 when he was granted a permanent visa.
While I accept that each individual factor may not provide an adequate basis for a conclusion that the applicant failed to answer correctly the relevant question in April 2015 I consider that taken together they are threads providing sufficient inferential and circumstantial support for the Tribunal’s conclusion.
Ground 5
In this ground the applicant submitted that the Tribunal committed jurisdictional error by failing to make findings about the relationship between the applicant and Anette and its findings about the relationship between the applicant and Daisy were irrelevant to that task. I reject that submission. A finding that the applicant carried on a substantial relationship with a person other than the sponsor, involving sexual, emotional and financial elements, and care for a child, over a period commencing in 2014, eventual marriage (albeit invalid) in 2017 and an intention to bring that person and the child to Australia was directly relevant to the question of whether the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others at 7 April 2015.
Ground 6
This ground takes issue with the Tribunal’s reasoning at paragraphs 33 and 34 of its reasons which dealt with the creation of Daisy’s Facebook page and the rejection of the applicant’s brother as a reliable witness in relation to the applicant’s relationship with Daisy. The applicant submitted that the reasoning was “inconsistent, contradictory and arbitrary”.
In an affidavit prepared by Daisy appearing in the Court Book she claims to have opened a Facebook account in the name “Majemite Arenyeka Iyangbe” in 2016. She claimed also that a Facebook account in the name “Daisy Arenyeka Iyangbe” was not created by her (this was the account with the uploaded photograph dated 2014). She said this account was fake. The Tribunal rejected that claim because it concluded that the personal photographs uploaded to the account must have been provided by her or someone close to her. The Tribunal did not, as the applicant submitted, posit the existence of some unknown third party as reliable witness in preference to Daisy. The Tribunal’s reasoning was open to it.
The applicant submitted that the Tribunal had no basis not to accept the applicant’s brother’s statement that the applicant was not in a relationship with Daisy before 2017. The brother’s written statement is short and no detail is given to support that assertion. Further, in the statement the brother said that Daisy informed him in January 2015 that the applicant was the child’s father. The brother said that he informed the applicant of this but the applicant said he had known of Daisy’s claim from July 2014 and had been in touch with her by telephone. It is apparent from the statement that the brother had not been previously aware of the contact between Daisy and the applicant. In my view it was open to the Tribunal to conclude, as it did, that the statement should be given little weight because the brother may not have been aware of the applicant’s personal affairs or because it was not satisfied the evidence was reliable because of his relationship with the applicant.
None of the grounds of review are made out. The application is dismissed with costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 10 May 2023
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