OKEKEITU (Migration)

OKEKEITU (Migration) [2024] AATA 2521 (26 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Uzochukwu Prince Martin Okekeitu
REPRESENTATIVE:  Mr Dhiresh Lal Kohli (MARN: 0746463)
CASE NUMBER:  1930977
HOME AFFAIRS REFERENCE:               BCC2016/2476648
MEMBER:Katie Malyon
DATE:26 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations; and,
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 26 June 2024 at 4:11 pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – both at the time of application and at the time of decision – financial aspects – nature of the household – social aspects – nature of the commitment – refusal to undergo DNA testing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Re MILGEA and Dhillon [1990] FCA 144
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, Nigerian national Mr Uzochukwu Prince Martin Okekeitu, applied for the visa on 26 July 2016 on the basis of his relationship with his sponsor, Australian citizen Mrs Kadaitu Daramy. At that time, Class UK contained only one subclass: Subclass 820 (Partner). Criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that Mr Okekeitu did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations. Having considered evidence and information provided in relation to the matters prescribed under reg 1.15A of the Regulations, the delegate was not satisfied that there was sufficient evidence to demonstrate that Mr Okekeitu is the ‘spouse’ of Mrs Daramy as defined in s 5F of the Act. Details of the delegate’s reasons in this regard are set out below in the Tribunal’s consideration of the each of the requirements set out in reg 1.15A of the Regulations.
After considering each of the reg 1.15A requirements, the delegate noted the absence of evidence of cohabitation during Mrs Daramy’s pregnancy and at the time of the birth of their claimed daughter Baindu Daramy on 13 August 2017. In light of this, the delegate requested a DNA test to confirm the parentage of Baindu Daramy and, although a request for extension of time to respond was made and granted, no results were provided. The couple’s newly appointed representative accused their previous migration agent of unethical conduct and advised that the couple were unable to do a DNA test due to financial hardship. As Mr Okekeitu had not done the requested DNA test, the delegate stated their firm belief that he is not the biological father of Baindu Daramy and that her Birth Certificate has been fabricated for visa purposes.
Following refusal of Mr Okekeitu’s visa application on 21 October 2019, an application for review was lodged with the Tribunal. Inconsistent with cl 5.1(a) of the Tribunal’s Migration and Refugee Matters Practice Direction dated 1 August 2018, no documentation was lodged by the representative in support of the review application at the time it was filed with the Tribunal, apart from a copy of the delegate’s decision.
The Tribunal’s s 359(2) letter
On 26 April 2023, the Tribunal wrote to Mr Okekeitu via his representative as part of its Outreach program, inviting him to provide evidence to address the circumstances in reg 1.15A of the Regulations. Mr Okekeitu replied to the Tribunal’s request on 8 May 2023 via his representative requesting an extension of time to respond to the Tribunal’s s 359(2) letter. The Tribunal granted an extension of time to respond until 7 June 2023. On 9 May 2023 and 7 June 2023, Mr Okekeitu and Mrs Daramy provided the Tribunal with several documents in response to the Tribunal’s request for information to support Mr Okekeitu’s claim for grant of the visa.
Following constitution to the Member and review of documentation provided to date, the matter was set down for hearing on 4 April 2024. The Tribunal’s hearing invitation noted that, based on its review of documentation provided to date, it was unable to make a favourable decision. In the circumstances, it requested a submission addressing the delegate’s reasons for refusing Mr Okekeitu’s visa application together with updated and current information supported by probative evidence to address his claims that he and Mrs Daramy have been in a genuine spousal relationship from the time his visa application was lodged with the Department to date. Pursuant to s 359(2) of the Act, the Tribunal also specifically requested particular documentation be provided.
In response to the Tribunal’s request in its hearing invitation, the representative provided a submission together with some additional documentation including a further copy of Mrs Daramy’s Statutory Declaration sworn 27 August 2019 lodged with the Department, updated bank statements and further uncaptioned photographs.
Hearing – 4 April 2024
Mr Okekeitu and Mrs Daramy appeared before the Tribunal on 4 April 2024 to give evidence and present arguments. The Tribunal also received evidence from 3 supporting witnesses who live in Sydney, as does the couple:
1)Abdulazezz Temitayo Ayodele, Mrs Daramy’s brother-in-law who is married to her sister;
2)Abiola Kabiru Oladeji, a member of the small 200-person Nigerian diaspora; and,
3)Mohamed Daramy, Mrs Daramy’s brother.
In addition, 2 supporting witnesses drove up from Canberra to attend the hearing:
1)Omotayo Kargbo, Mrs Daramy’s long standing friend who, like her, is involved in the Sierra Leone women’s community group; and,
2)Mohamed Kamara, a friend who is also a member of the Sierra Leone community.
Baindu Daramy took the day off her Year 1 class at Liverpool Public School to attend the hearing, throughout which she sat on Mr Okekeitu’s lap.
Mr Okekeitu was represented in relation to the review by registered migration agent Dhiresh Lal Kohli, who also attended the hearing.
At the commencement of the hearing, the Tribunal noted that it had not been provided with any of the requested documentation set out in its hearing invitation. Mr Okekeitu agreed to review the list and provide available documentation after the hearing. The Tribunal then took independent evidence from Mr Okekeitu and Mrs Daramy during the hearing about their relationship history, the financial as well as social and household aspects of their relationship and the nature of their commitment to each other since the relationship started. The 5 witnesses attending the hearing also provided oral evidence. Evidence provided at the hearing is discussed below in the context of the Tribunal’s consideration of the requirements in reg 1.15A of the Regulations.
As is customary, prior to concluding the hearing the Tribunal invited all parties present to make any further comments should they wish to do so. Only one of the parties appearing before the Tribunal, Mohamed Kamara, responded to its invitation. Mr Kamara sought clarification as to whether the couple’s failure to provide the results of a DNA test for Baindu Daramy would impact the outcome of the Tribunal’s decision. The Tribunal indicated failure to provide the results would be one of the factors for its consideration: however, a positive DNA test confirming Mr Okekeitu is Baindu Daramy’s father would likely ensure a prompt and favourable outcome given other documentation provided to date to address the reg 1.15A requirements.
After the hearing, further documentation was provided by the representative for the Tribunal’s consideration. Relevant documentation is discussed below.
On 16 May 2024, the representative requested a further hearing to enable the Tribunal to take further oral evidence that may have been inadvertently overlooked during the hearing on 4 April 2024. Initially, the Tribunal responded noting that, if Mr Okekeitu and/or Mrs Daramy wished to provide further evidence, they should submit a sworn Statutory Declaration supported by probative evidence from any person who wishes to provide the Tribunal with additional evidence.
On 30 May 2024, the representative reiterated his earlier request that the couple wish to provide further oral evidence. The Tribunal agreed to schedule a second hearing to be held on 14 June 2024.
Hearing – 14 June 2024
In the signed Response to hearing invitation, Mr Okekeitu advised that a friend, James Chuku Okorie, would be attending to give evidence that he had invited him to a social gathering in 2012 where he met Mrs Daramy for the first time and, since then, James Okorie has observed the development of the couple’s partnership and, as such, ‘his testimony is a crucial piece of evidence regarding our married and family life’. The Tribunal was also advised that Mrs Daramy, her 6-year-old daughter Baindu Daramy and her 13-year-old son Emmanuel Wilson would also attend to give oral evidence.
Mr Okekeitu and Mrs Daramy appeared before the Tribunal on 14 June 2024. The Tribunal was advised that Mr Okorie’s partner had just arrived back from a trip overseas and he was unable to attend the hearing as he had to pick her up at the airport. Further, the Tribunal was advised that Mrs Daramy’s son, 13-year-old Emmanuel Wilson is attending school and, accordingly, he was not able to attend the hearing to give evidence. Baindu Daramy attended the hearing and sat on Mr Okekeitu’s lap as she engaged in colouring a book. The representative also attended the hearing.
At the outset, the Tribunal invited Mr Okekeitu and Mrs Daramy to provide justification of their request for a further hearing in circumstances where 2 of the witnesses in the signed Response to hearing invitation were not in attendance. Mr Okekeitu told the Tribunal that neither he nor his wife had requested any further hearing: rather, they had been told by the representative just to attend the second hearing. The Tribunal opined that, in the circumstances, it appeared evident that the representative had acted without instructions, in clear breach of his obligations to his clients. Both Mr Okekeitu and Mrs Daramy acknowledged the Tribunal’s comments in this regard. The representative declined the Tribunal’s invitation to make any comment.
Invited to give any further oral evidence for the Tribunal’s consideration, Mr Okekeitu declined the Tribunal’s invitation. Mrs Daramy gave a short tearful reiteration of her oral evidence at the hearing on 4 April 2024 that the delays to date following lodgement of her husband’s Subclass 820 Partner visa have been very stressful for her. The Tribunal acknowledged Mrs Daramy’s comments. It noted the Tribunal’s governing statute, the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 2A of the AAT Act. It added that there is no statutory period within which the Tribunal must determine a review application.
The Tribunal explained that delay to date following lodgement of the review application on 21 October 2019 is due to a combination of the Tribunal’s huge backlog of cases (which has resulted in the Government’s recent appointment of more than 80 new Members), priority being given to resolving cases involving parties affected by conflicts in Ukraine, Gaza, Israel and Lebanon as well as the fact that the parties had failed to provide a fully-documented decision-ready review application, either at the time of lodgement of the review application or in response to the Tribunal’s s 359(2) Outreach request of 26 April 2023. Hence, the need for the hearing held on 4 April 2024 and the Tribunal’s request at that hearing for further documentation, only some of which has been provided. No further evidence was provided to the Tribunal after the hearing on 14 June 2024. In passing, the Tribunal notes that its delays can also be explained by a representative’s failure, as repeatedly occurred in this case, to submit documentation consistent with cl 7.5 - 7.11 and cl 9.9 – 9.11of the Tribunal’s Migration and Refugee Matters Practice Direction dated 22 February 2023.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal acknowledges that it has more information (over 1,500 pages but many of which have been replicated) than that which was available to the delegate at the time of their decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue in the present case is whether Mr Okekeitu is the ‘spouse’ of his sponsor Mrs Daramy both at the time of application and at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.
Background
By way of brief background, as set out in the Statutory Declarations sworn by Mr Okekeitu and Mrs Daramy on 20 June 2016 lodged with the Department, the couple met on 7 July 2012 in Brisbane at a party at the house of Mrs Daramy’s friend, Kerry Kanyungwa. They started talking and ended up dancing together, as did their friends Kerry and James Okorie. The couple spent the night together, after which Mrs Daramy returned to Sydney the next day to care for her son Emmanuel. Subsequently, when Mr Okekeitu passed through Sydney enroute back to Perth, Mrs Daramy and her son Emmanuel met him at Sydney airport for a catchup coffee, cake and ice cream. Thereafter, they kept in touch by way of phone calls until Mr Okekeitu went back overseas.
The couple briefly touched base again in February 2013. After that, they lost contact for some time until November 2015 when the couple reconnected. After meeting up in Sydney, the couple decided to enter into a relationship together: this was when Mr Okekeitu told Mrs Daramy that he had divorced his wife in Nigeria. Mr Okekeitu subsequently proposed to Mrs Daramy on 20 November 2015 while at a dinner at the Mounties Club and she accepted.
On 26 December 2015, the couple were married at Riverside Theatres in Parramatta. The couple claim to have lived together from the time they were married. On 24 January 2016, Mr Okekeitu left Australia, essentially to visit his family in Nigeria. Mrs Daramy joined him in Nigeria for a one week visit to meet his family, in particular, his 3 children from his first marriage: Michael, Stephanie and Angel. Mr Okekeitu arrived back in Australia on 5 May 2016 as the holder of a Visitor Subclass 600 visa which had been granted on 25 April 2016. Later that year, Mrs Daramy fell pregnant, and the couple claim to have a daughter together, Baindu Isota Daramy who was born at Liverpool Hospital on 13 August 2017.
Relevant law
Clause 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations respectively require that, at the time the visa application was made and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Mr Okekeitu claims to be the spouse of his Australian citizen sponsor Mrs Daramy. Having considered information in the Department’s file, the Tribunal accepts that Mrs Daramy was born in Freetown, Sierra Leone and that she subsequently moved to live in Australia and was granted Australian citizenship on 21 July 2009.
The word ‘spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together or they must not live separately and apart on a permanent basis: s 5F(2)(a)-(d) of the Act.
In forming an opinion as to whether the parties are in a spousal relationship at the relevant time, consideration must be given to all of the circumstances of the relationship. This includes consideration of evidence pertaining to the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3) of the Regulations. Each of the specific matters contained in reg 1.15A(3) of the Regulations are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Relevant to its review of the delegate’s refusal of Mr Okekeitu’s Subclass 820 Partner visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
Accordingly, in deciding this matter, the Tribunal has had regard to evidence of events that have occurred subsequent to the date of lodgement of Mr Okekeitu’s visa application.
Also relevant, particularly in light of allegations claimed to be given to the Department in 2015 and 2016 which are the subject of brief comments in the delegate’s decision (a copy of which was provided to the Tribunal) about Mr Okekeitu entering into a contrived relationship with Mrs Daramy for the sole purpose of gaining entry into Australia, are comments in Re MILGEA and Dhillon [1990] FCA 144 where the Full Federal Court at para [11] stated that:
People enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.[1]
[1] Re MILGEA and Dhillon [1990] FCA 144, Northrop J, Wilcox J and French J
The Tribunal notes that details of the allegations briefly referred to in the delegate’s decision are not the subject of any s 376 Non-Disclosure Certificate issued by the Department. The only information available to the Tribunal about the allegations is the commentary in the delegate’s decision. Prior to the hearing held on 4 April 2024 and, in response to the request in the Tribunal’s hearing invitation that Mr Okekeitu provide the Tribunal with a response addressing all of the issues raised by the delegate in their decision, the Tribunal was provided with copies of Statutory Declarations sworn by Mr Okekeitu and Mrs Daramy on 27 August 2019. The delegate’s observations about the allegations were also discussed at the hearing on 4 April 2024. Oral evidence provided at the hearing is discussed below.
Are the parties validly married?

If the parties are validly married, they may meet the requirements of a spousal relationship but not a de facto relationship.
The Department’s file contains a copy of the NSW Marriage Certificate issued under the Births Deaths and Marriages Registration Act 1995 (NSW) confirming that Mrs Daramy and Mr Okekeitu were married on 26 December 2015 at Riverside Theatres, Parramatta. This is Mrs Daramy’s first marriage. However, Mr Okekeitu was formerly married to Angela Ukamaka Okekeitu. The Department’s file contains a copy of the Decree Nisi issued by the High Court of Lagos in the Ikeja Judicial Division on 17 April 2014 confirming Mr Okekeitu’s divorce from Angela Ukamaka Okekeitu. There is nothing to suggest that the couple’s marriage is not valid.
Based on evidence provided, the Tribunal is satisfied - as was the delegate - that, at the time of lodgement of the visa application on 26 July 2016, the parties were married to each other under a marriage that is valid for the purposes of s 5F(2)(a) of the Act. The Tribunal is satisfied this continues to be the case as at the time of this decision.
Are the other requirements for a spouse relationship met?
In forming an opinion on the matters required in s 5F(2)(b) - (d) of the Act, regard must be had to all of the circumstances of the claimed relationship. This includes the factors identified in reg 1.15A(3) of the Regulations and any other circumstances relevant to the relationship under reg 1.15A(2) of the Regulations. The factors in reg 1.15A(3) of the Regulations are: the financial aspects of the relationship; the nature of the household; social aspects of the relationship; and, the nature of the persons’ commitment to each other. The Tribunal has considered whether these requirements are met.
Financial aspects of the relationship: reg 1.15A(3)(a)
When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: joint ownership of assets; joint liabilities; the extent of pooling of financial resources; any legal obligations owed to the other party; and, any sharing of day-to-day household expenses.
The delegate acknowledged joint bank statements from the Commonwealth Bank of Australia (last 4 digits #1507) (the CBA Joint Account) for the period 27 November 2015 to 24 May 2016 showing limited transactions and also the period 1 January 2018 to 30 June 2019 showing regular deposits and withdrawals. Whilst some weight was given to this evidence, the delegate noted the couple had not provided any evidence that they used the CBA Joint Account from June 2016 to December 2017 or that they had used the account for paying any house bills or major purchases of household items. Based on the lack of documentary evidence that the couple had jointly purchased any household items or that they shared household expenses, the delegate was not satisfied that the parties had pooled their financial resources in any way, held any significant joint assets or liabilities, made any significant purchases or shared any day-to-day financial responsibilities in a way that would indicate a commitment by both parties to a genuine and ongoing relationship.
The Tribunal notes it, too, has not been provided with bank statements for the CBA Joint Account from June 2016 to December 2017. This presents some concern for the Tribunal as it includes the period during which Mrs Daramy was pregnant (from late 2016) and gave birth to her daughter Baindu Daramy on 13 August 2017. The Tribunal has been provided with bank statements for the CBA Joint Account from 1 January 2018 to 25 March 2024. The bank statements provided confirm monies paid to Mr Okekeitu for his work as a Disability Support Worker with a range of NDIS-registered agencies including 8848 Disability Services,[2] First Home Care[3] and First Care Specialists.[4] It is also evident that the CBA Joint Account is used for general expenses including groceries (Woolworths, Coles, McDonald’s, seafood suppliers and butchers), cafe expenses, Optus bills and fees for Baindu Daramy’s dance classes and her after-school care.
[2] Ndis service providers|8848 disability services
[3] First Home Care – First Care NDIS
[4] Disability Care in NSW | First Care Specialists
Further, the bank statements provided for the CBA Joint Account confirm regular transfers of funds to Mrs Daramy’s Bendigo Account (last 4 digits #1659) (Mrs Daramy’s Bendigo Account). These transfers are also confirmed in the bank statements provided for Mrs Daramy ’s Bendigo Account for the period from 31 October 2021 to 30 October 2023. The bank statements confirm receipt by Mrs Daramy of funds directly from her husband Mr Okekeitu as well as Centrelink payments and expenditure on general household items including groceries and other items at Kmart, Aldi, BigW, 7-Eleven, butchers, cafes, Liquorland and BWS.
In addition, the Tribunal has also been provided with bank statements for Mr Okekeitu’s ANZ Access Advantage account from 22 May 2020 to 8 April 2024 (last 4 digits #0473) (Mr Okekeitu’s ANZ Account). Funds received in Mr Okekeitu’s ANZ Account confirm he has transferred money from another ANZ account in his name identified as Liverpool Branch #2 and that money has also been received from multiple named persons. Expenses paid for from the account include groceries at Coles and McDonald’s as well as other retailers.
Mr Okekeitu and Mrs Daramy independently told the Tribunal that the CBA Joint Account is for shared finances and, where possible, the couple both contribute to the CBA Joint Account as well as their respective personal accounts to cover lease expenses and utility bills including internet, gas and electricity. Transport costs tend to be paid individually from their respective personal accounts. The CBA Joint Account is used for groceries, dining out, expenses relating to the children including their after-school care fees, dance classes as well as car registration and insurance, fuel costs, car maintenance as well as health insurance. The Tribunal has also been provided with evidence of purchases by the couple of a range of household items and services including a television screen from Bing Lee and furniture items such as a couch from LJ Innovation.
Evidence provided, including oral evidence at the hearing, confirms that the parties share their finances. They each operate their own personal bank account (Mrs Daramy’s Bendigo Account and Mr Okekeitu’s ANZ Account) referred to above and they also operate the CBA Joint Account which is used for various daily expenses. Mr Okekeitu and Mrs Daramy independently told the Tribunal that the couple contribute to day-to-day household expenses including school fees, groceries, clothing, entertainment and car-related costs. Mrs Daramy added that, when her husband was not working due to his restricted work rights, she fully supported the family although he did draw on his savings. Since her husband gained full work rights, he has fully shared financial responsibilities for the family. The couple both contribute to paying rent and utility bills, initially for their apartment in Lurnea and now their apartment in Liverpool.
The Tribunal accepts that, at the time of application, Mr Okekeitu and Mrs Daramy did not own any real estate or other major assets. As at the time of this decision, it accepts that the couple still do not own any real estate.
Based on the evidence provided, including oral evidence at the hearing, the Tribunal is satisfied that the financial aspects of the couple’s relationship are indicative of a couple in a spousal relationship at the time of application and at the time of this decision.
Nature of the household: reg 1.15A(3)(b)
The Tribunal is required to consider the nature of the parties’ household including any joint responsibility for care and support of children, their living arrangements and any sharing of housework.
The delegate had regard to the Lease Agreement from June 2016 to January 2017 in relation to an apartment in William Street, Lurnea as well as a Tenant Ledger Report for the period from July 2018 to June 2019 in relation to an apartment in Riverpark Drive, Liverpool. Also lodged with the Department was the following evidence, none of which was expressly referred to by the delegate in their decision:
1)a water usage invoice addressed to the couple at their Lurnea address from real estate agents Richardson & Wrench for the period 21 April 2016 to 25 July 2016;
2)utility bills in joint names addressed to the couple at their Lurnea address from AGL in the period 7 October 2016 to 27 August 2017;
3)a letter in joint names addressed to the couple at their first Riverpark Drive, Liverpool apartment from AGL dated 23 May 2019 in relation to payment of outstanding monies – they lived at this apartment from 28 July 2018 to 31 August 2021;
4)a letter in joint names addressed to the couple at their Liverpool apartment from AGL confirming the balance due for payment by 3 June 2019; and,
5)a bill in joint names addressed to the couple at their Liverpool apartment from Optus in the period 8 July 2019 to 7 August 2019.
In addition, the Tribunal notes that no reference was made in the delegate’s decision (a copy of which was provided to the Tribunal) to the signed undated letter from Sonia Fatehi, Supervisor with Play2Learn in Liverpool confirming that Mr Okekeitu is the primary contact person who drops off and picks up Baindu Daramy regularly, although he sometimes comes with his wife Mrs Daramy.
While the delegate acknowledged that the numerous Statutory Declarations and Forms 888 Statutory declaration by supporting witness in relation to a Partner or Prospective Marriage visa application provided in support of Mr Okekeitu’s visa application state that the couple have been living together and are in a genuine relationship, little weight was given to these statements by the delegate given the absence of other convincing documentary evidence. The delegate concluded that the parties did not provide any convincing documentary evidence that they are both living together, sharing a household and have responsibilities for the household.
As set out in the statements provided by Mr Okekeitu and Mrs Daramy lodged with the Tribunal, the couple lived at the William Street, Lurnea apartment from November 2015 until late July 2018 when they moved to their first apartment at Riverpark Drive, Liverpool. After living at that apartment for just over 3 years, they relocated to another apartment in the same strata complex at Riverpark Drive, Liverpool. This is where they currently continue to live together. As noted above, 13-year-old Emmanuel Wilson and his sister 6-year-old Baindu Daramy live together with the couple. Mr Okekeitu and Mrs Daramy independently told the Tribunal that they jointly manage cooking, washing dishes and clothes, drying clothes, collecting them from the clothesline, ironing and cleaning the apartment. They fully share responsibility for housework and looking after the 2 children.
The Tribunal has been provided with copies of signed Leases for each of the Lurnea apartment dated 7 July 2016 and the current apartment that the couple occupy at Riverpark Drive, Liverpool dated 31 August 2021. In relation to evidence of the couple’s occupation of their first apartment at Riverpark Drive, the Tribunal has been provided with a Tenant Trust Ledger Report from 28 July 2018 confirming receipt of rent and, relevantly, the residential bond. In addition, it has been provided with multiple utility bills addressed to the couple throughout their time together at the 3 apartments including invoices from Richardson & Wrench for water usage, Optus, AGL and Foxtel. The couple has also provided Tenant Trust Ledger Reports from 1 September 2021 to 21 March 2024 in relation to rent paid for their current apartment at Riverpark Drive, Liverpool.
Mr Okekeitu has also provided his NSW Driver Licences, tax returns as lodged with the Australian Taxation Office (ATO) for years ended 30 June 2018 to 30 June 2023 as well as Mrs Daramy ’s communications with Centrelink confirming the couple’s address details at the relevant times. Further, the Tribunal has been provided with extensive correspondence, subscriptions and copies of invoices in respect of household purchases for deliveries addressed to the couple at their 3 successive apartments in Lurnea and Riverpark Drive, Liverpool.
In relation to the period the subject of the delegate’s concern regarding the time throughout Mrs Daramy’s pregnancy to the time of her daughter’s birth on 13 August 2017, the Tribunal has been provided with water usage bills from Richardson & Wrench for the Lurnea apartment. The invoices confirm that water usage bills throughout the period 21 October 2016 to 23 January 2017 (during which time Mrs Daramy became pregnant with Baindu Daramy) and again from 1 September 2017 to 22 May 2018 (after she had given birth to her daughter on 13 August 2017) are consistent with the same number of people living in the apartment, allowing for some additional water usage by the new baby.
Relevant to the issue the subject of commentary by the delegate about the lack of evidence of cohabitation during Mrs Daramy’s pregnancy and childbirth, the Tribunal is satisfied that, if Mr Okekeitu had moved out of the couple’s apartment in Lurnea, water usage would have dropped. In the circumstances, the Tribunal is satisfied that the water bills provided confirm that the couple lived together throughout the period when Mrs Daramy was pregnant with Baindu Daramy and after giving birth to her daughter.
Having regard to evidence provided, including oral evidence at the hearings from the 5 witnesses referred to above at para [9] who attended the face-to-face hearing on 4 April 2024, the Tribunal is satisfied that the nature of the couple’s household at the time of application is indicative of a couple in a spousal relationship and that they continue to be in a spousal relationship at the time of this decision.
Social aspects of the relationship: reg 1.15A(3)(c)
In its consideration of the social aspects of the parties’ relationship the Tribunal is required to consider: whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and, any basis on which the persons plan and undertake joint social activities.
The delegate acknowledged that Mr Okekeitu and his sponsor Mrs Daramy had provided photographs of their wedding ceremony as well as photographs of some other occasions which were attended by the couple and other people. However, given the limited nature of the photos, little weight was given to them.
Further, the delegate acknowledged receipt of the Statutory Declarations and statements referred to above at para [49]. Documentation had been provided by the couple’s family, friends and neighbours as follows:
1)Kerry Kanyungwa sworn 19 June 2016. Ms Kanyungwa is Mrs Daramy’s friend who invited her to a party in Brisbane on 7 July 2012 and facilitated the couple’s meeting up;
2)Alhaji Rakim Bangura sworn 22 June 2016;
3)Jane Okorie (aka Jane Hunt), sworn 27 June 2016. Ms Okorie states she is the spouse of James Okorie, a good friend of Mr Okekeitu who has known him since their days working together in South Korea;
4)Charles Nkem sworn 31 March 2017, a friend of the couple who also attends the same local Christian church;
5)Elijah Morgan sworn 4 August 2019, a neighbour of the couple at their apartment in Liverpool;
6)Mohamad Daramy sworn 10 August 2019, Mrs Daramy’s brother; and,
7)Seth Nana Osei Agyemang Bempah, undated and unsigned. Mr Bempah is a Christian Pastor at Christ Preachers Church International. He confirms the couple attend Sunday services with their children Immanuel (sic) and Baindu.
Whilst acknowledging documentation provided and after evaluating that evidence, the delegate was unconvinced that Mr Okekeitu and Mrs Daramy present themselves to family, friends or the wider community as being a married couple. The delegate found the parties had not undertaken joint social activities, attended significant events together, did not belong to any organisations or groups together, nor had they engaged in holidays or short breaks together.
The Tribunal has had the benefit of detailed statements from each of Mr Okekeitu and Mrs Daramy as well as oral evidence from the couple and the 5 supporting witnesses who attended the face-to-face hearing on 4 April 2024: Omotayo Kargbo; Abdulazezz Temitayo Ayodele; Abiola Kabiru Oladeji; Mohamed Daramy; and, Mohamed Karama
Mrs Daramy told the Tribunal that after her marriage to Mr Okekeitu, she travelled to Nigeria for a week in February 2016 to meet her husband’s 3 children from his former spousal relationship as well as her husband’s brothers and friends. She refers to her husband’s children as Michael, Stephanie and Angel. Mrs Daramy also said that the couple had a celebration in Lagos with her husband’s family and friends, all of whom totally accepted them as a married couple. The Tribunal notes that, without exception, all of the Forms 888 lodged with the Department and oral evidence at the hearing on 4 April 2024 warmly attest to the genuineness of the couple’s relationship for as long as each of the parties have respectively known Mr Okekeitu and Mrs Daramy.
The Tribunal has been provided with a document from Seth Nana Osei Agyemang Bempah, a Christian Pastor at Christ Preachers’ Church International ABN 33 706 918 045,[5] a charity registered with the Australian Government’s Charities and Not-for-profits Commission.[6] In the unsigned, unwitnessed statement dated 11 April 2024, Pastor Bempah confirms that he has known Mr Okekeitu and his wife Mrs Daramy for 8 - 9 years. He attests that they demonstrate a deep commitment to the Christian faith, are deeply rooted with Christian values on marriage and relationships and that they participate in church activities. In his opinion, the couple’s relationship is genuine, ongoing, committed and loving. The Tribunal noted the unsigned, unwitnessed statement bears the seal of a differently named organisation Christ Preachers’ Church Intl Inc. Pastor Bempah states that he understands a person who intentionally makes a false statement in a ‘statutory declaration’ is guilty of an offense (sic) under s 11 of the Statutory Declaration Act 1959. However, it is evident to the Tribunal that Pastor Bempah has not read or understood that statute as it requires a declaration to be signed by the declarant either in person or by video link under the observation of a prescribed person. In the circumstances, the Tribunal has given no weight to the statement from Pastor Bempah. The Tribunal does, however, accept that Mr Okekeitu and Mrs Daramy regularly attend services run by Christ Preachers’ Church International as confirmed by multiple other persons who have correctly executed a Statutory Declaration or completed a Form 888 Statutory Declaration by supporting witness in relation to a Partner or Prospective Marriage visa application.
[5] Christ Preachers Church International Financial Overview | Apollo
[6] CHRIST PREACHERS CHURCH INTERNATIONAL | ACNC
While the Tribunal does not accept the statement from Pastor Bempah, it does accept that Felix Wilson, Mrs Daramy’s former boyfriend and the father of her son Emmanuel Felix Wilson, has provided a Form 888 dated 24 April 2024 confirming that he knows Mr Okekeitu through his former girlfriend Mrs Daramy and that he, essentially, shares his son with Mr Okekeitu. Mr Wilson opines that he believes the relationship between Mr Okekeitu and Mrs Daramy to be genuine and respectful because his son Emmanuel says good things about his stepfather Mr Okekeitu. Mr Wilson confirms that he chats with Mr Okekeitu, who is always respectful and he values, admires and is grateful for the relationship that Mr Okekeitu has with his son Emmanuel Wilson. His adds that his contribution to Emmanuel has been huge, especially as his son is happy in the family relationship that he shares with Mr Okekeitu, his mother Mrs Daramy and his younger sister Baindu. The biodata page of Mr Wilson’s Australian passport and his NSW Driver Licence confirming the authenticity of his signature have also been provided.

The Tribunal does accept testimonials in the updated Statutory Declarations and Forms 888 that have been provided both before and after the hearings confirming the genuineness of the couple’s long-standing spousal relationship from the following work colleagues and friends:
1)James Chuku Okorie dated 1 June 2023. Mr Okorie is a friend of Mr Okekeitu from their days living in South Korea 16 years ago. He recalls the day he attended the same party in Brisbane where the couple met in July 2012. He has known Mrs Daramy since then;
2)Omotayo Kargbo dated 2 June 2023, a friend of Mrs Daramy since their time together in Sierra Leone;
3)Sallay Daramy dated 2 June 2023, a work colleague of Mrs Daramy for more than 8 years;
4)Zainab Binta Kamara dated 2 June 2023, a friend of Mrs Daramy from their days in Sierra Leone together;
5)Elijah Morgan dated 29 April 2024. Mr Morgan is a family friend who knows the couple from their church activities; and,
6)Chibuzor Paul Adukwe dated 30 April 2024. Mr Adukwe is a member of the Nigerian diaspora who has known Mr Okekeitu for in excess of 7 years and he knows of his friend’s wife Mrs Daramy too.
The Tribunal has also been provided with evidence of the declarants’ biodata pages of their respective Australian passports confirming their signature and also NSW or ACT Driver Licences.
In relation to the couple’s communications with government agencies regarding their spousal relationship, the Tribunal has been provided with evidence of Mrs Daramy declaring her spousal relationship with Mr Okekeitu to the ATO in her tax returns for the years ended 30 June 2017 to date. Evidence has also been provided of Mr Okekeitu declaring his spousal relationship with Mrs Daramy to the ATO in his tax returns for years ended 30 June 2017 to date. In addition, evidence has also been provided that Mrs Daramy has advised Centrelink of her relationship with Mr Okekeitu.
After the hearing and following discussion of the topic at the first hearing, the representative provided evidence from Mrs Daramy and Mr Okekeitu respectively dated 8 April 2024 and 9 April 2024 regarding their identification of beneficiaries of their respective superannuation fund. Mrs Daramy has identified her husband Mr Okekeitu as the 40% beneficiary of her AustralianSuper Fund and each of her son Emmanuel Felix Wilson and her daughter Baindu Daramy as 30% beneficiaries of her fund. Evidence provided confirms that Mr Okekeitu’s superannuation fund with Australian Retirement Trust identifies each of Baindu Daramy and his eldest son Nzubechukwu Michael Okekeitu (who lives in Nigeria) as 20% beneficiaries. Each of his wife Mrs Daramy, his step-son Emmanuel Wilson and his other 2 children in Nigeria, Mmesoma Stephanie Okekeitu and Ifunanya Angel Okekeitu, are 15% beneficiaries of his superannuation fund.
The Tribunal has also been provided with a plethora of dated and captioned photographic evidence of the couple’s social activities with family and friends dating back to May and June 2016. Helpfully, the photographs identify parties in the dated photographs. Based on evidence provided, it is evident that Mr Okekeitu and Mrs Daramy socialise together as a couple and that their family and friends are aware of their spousal relationship, support the relationship and believe it to be genuine.
As discussed during the hearing and having regard to the delegate’s concerns regarding Mr Okekeitu’s apparent absence throughout the time of Mrs Daramy’s pregnancy and her giving birth to her daughter Baindu Daramy on 13 August 2017, the Tribunal requested photographs of a fully pregnant Mrs Daramy together with Mr Okekeitu and early photographs of baby Baindu Daramy with the couple. The Tribunal notes its concerns regarding the continued absence of this requested evidence, particularly as the first photograph of Mr Okekeitu with baby Baindu Daramy is when she is about 4 months of age. In the couple’s statements lodged after the hearing, both Mr Okekeitu and Mrs Daramy state failure to take photographs of a pregnant Mrs Daramy and photos of Mr Okekeitu with baby Baindu Daramy immediately following her birth is an African cultural issue, and the couple just did not see this as important. Notwithstanding this explanation, the Tribunal has some concerns regarding the absence of these requested photographs, particularly having regard to comments in the delegate’s decision doubting the genuineness of Mr Okekeitu’s claimed parentage of Baindu Daramy.
The Tribunal has been provided with extensive texts confirming multiple daily communications between the couple and also their WeChat communications. It accepts that the couple plan and undertake joint social activities, in particular, eating out at their favourite restaurants and getting involved in the social activities of Emmanuel Wilson and Baindu Daramy .
Having regard to evidence provided, including letters of support and Forms 888 from family and friends as well as oral evidence from third party witnesses at the hearing on 4 April 2024, the Tribunal is satisfied that the couple represent themselves to other people as being married to each other and that they undertake joint social activities as a family. On balance, and notwithstanding the absence of photographs in relation not only to Mrs Daramy’s advanced third trimester pregnancy with Mr Okekeitu but also Mr Okekeitu with his newborn daughter and his wife following Baindu Daramy’s arrival on 13 August 2017, the Tribunal is satisfied that evidence of the couple’s social aspects of the relationship is indicative of a couple in a spousal relationship at the time of application and, further, this continues to be the case as at the time of this decision.
Nature of persons' commitment to each other: reg 1.15A(3)(d)
In its consideration of the nature of the persons' commitment to each other, the Tribunal is required to consider: the duration of the relationship; the length of time the parties have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long term.
The delegate acknowledged that the couple claimed to have known each other since 7 July 2012 and accepted that they lawfully married in Parramatta on 26 December 2015. However, the delegate noted no evidence had been provided to indicate that Mr Okekeitu and Mrs Daramy offer companionship or emotional support to each other, especially in difficult times, which are typical elements of a long-term, committed relationship.
As discussed at the hearing on 4 April 2024, the delegate’s decision (a copy of which was provided to the Tribunal) also notes that during 2015 and 2016, the Department received several allegations that Mr Okekeitu had entered into a contrived relationship with his sponsor for the sole purpose of gaining entry into Australia. Whilst acknowledging the couple had provided several documents as evidence of their relationship including the Birth Certificate of Baindu Daramy (which states that Mr Okekeitu is the biological father of the child but the family name is the same as that of Mrs Daramy), the delegate specifically noted the absence of any evidence of cohabitation during Mrs Daramy’s pregnancy and at the time of Baindu Daramy’s birth. In light of this, the delegate requested on 23 July 2019 a DNA test to confirm the parentage of Baindu Daramy. Mr Okekeitu requested an extension of time to respond and an extension was granted until 27 August 2019 to initiate the requested DNA test.
Following notification to the Department of the appointment of Charles Ukaegbu as Mr Okekeitu’s new representative, the newly appointed representative accused Mr Okekeitu’s previous registered migration agent of unethical conduct. He also noted that Mr Okekeitu was unable to do the requested DNA test to prove his parentage of Baindu Daramy due to financial hardship. The delegate found that, because Mr Okekeitu had not done the requested DNA test, he is not the biological father of Baindu Daramy and that her Birth Certificate has been fabricated for visa purposes. In passing, the Tribunal notes that Charles Ukaegbu did not assist Mr Okekeitu with this review application: rather, the current representative has assisted him.
Mr Okekeitu told the Tribunal that he and Mrs Daramy had been providing moral and emotional support to each other from the day of their commitment to their marriage on 26 December 2015 and that they continue to do so. He added that they love each other deeply and are committed to each other.
Mrs Daramy independently told the Tribunal that the couple’s relationship is built on a foundation of mutual respect, trust and unwavering commitment to each other. She opined that, throughout their years together, they have faced a number of challenges supporting each other through thick and thin. Their devotion has been unwavering and dedicated to nurturing their bond, and building a future together including for their children. Mrs Daramy added that her husband Mr Okekeitu supported her through her pregnancy by taking on additional responsibilities to ease the burden on her. She added that the couple have integrated their lives seamlessly, creating a loving and supportive environment for their children.
As noted above at para [66], evidence has been provided to the Tribunal of Mr Okekeitu’s superannuation fund with Australian Retirement Trust confirming that he has identified each of Baindu Daramy and his eldest son Nzubechukwu Michael Okekeitu as 20% beneficiaries, and that his wife Mrs Daramy, his step-son Emmanuel Wilson and his other 2 children in Nigeria, Mmesoma Stephanie Okekeitu and Ifunanya Angel Okekeitu, are 15% beneficiaries of his superannuation fund. The Tribunal accepts that this indicates Mr Okekeitu treats Baindu Daramy on par with his eldest son in Nigeria.
The delegate placed significant weight on Mr Okekeitu’s refusal to undergo DNA testing and formed the view that his refusal meant that the couple’s claim that Baindu Daramy is his child is baseless. The Tribunal has considered the joint responsibility for care and support of Baindu Daramy as significant. Letters have been provided from childcare providers and Baindu Daramy’s primary school to confirm that Mr Okekeitu has consistently played an active role in her development.
The Tribunal acknowledges that a party’s refusal to undergo DNA testing when biological parentage is claimed may call into question the reliability of other evidence provided by a party. In the present case, there is nothing to indicate that Mr Okekeitu or Mrs Daramy has provided inconsistent evidence in any other matter. The Tribunal acknowledges the couple’s reasons for refusing to undergo DNA testing, that is, having to pay costs of $500. The Tribunal discussed during the hearing the opportunity to seek financial support from multiple family members and the wider Sierra Leonean and/or Nigerian communities as well as other attendees of their Christian Church. It appears evident to the Tribunal that the couple have not proactively engaged with the opportunity to provide strong probative evidence to support Mr Okekeitu’s application for a Subclass 820 Partner visa. The Tribunal has formed the view that, at best, the couple’s decision to not undertake DNA testing, reflects poorly on their commitment and their relationship. However, when viewed in conjunction with the other evidence outlined above in support of the genuineness of the couple’s relationship over time, the Tribunal affords their refusal limited weight.
In passing, the Tribunal notes the written submission dated 24 June 2023 from the representative contends that it is in the child Baindu Daramy’s best interests that she Daramy be raised by both her parents. However, relevantly, the Tribunal notes that the current review requires a determination of whether Mr Okekeitu and his sponsor Mrs Daramy not only were, at the time of application, in a genuine and continuing spousal relationship but that they also continue, at the time of this decision, to be in a genuine and continuing spousal relationship. As such, the Tribunal is not required to exercise a discretion which would otherwise be relevant if the Tribunal was considering either Mr Okekeitu’s failure to hold a substantive visa at the time that he lodged his Subclass 820 Partner visa or, in the alternative, cancellation of his current visa. As neither of these circumstances arise, the best interests of the child is not a relevant consideration in this review. When this issue was raised by the Tribunal during the course of the hearing on 4 April 2024, the Tribunal notes the representative apologised and accepted the Tribunal’s observations in this regard.
Having regard to evidence provided, the Tribunal accepts the claims of Mr Okekeitu and Mrs Daramy that, throughout the couple’s more than 8 years spent living together, they have provided emotional support and companionship to each other. It also accepts that they see their relationship as long term.
Overall assessment of the spousal relationship
The Tribunal acknowledges the comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 referred to above at para [29] regarding the relevance of events subsequent to the date of lodgement of Mr Okekeitu’s visa application and the comments of the Full Federal Court in Re MILGEA and Dhillon [1990] FCA 144 referred to above at para [31].
Based on the extensive evidence as to the parties’ financial and social aspects of their relationship as well as the nature of their household arrangements and their strong commitment to each other, the Tribunal is satisfied that, on balance, both at the time of application and as at the time of this decision, Mr Okekeitu and Mrs Daramy are in a genuine spousal relationship.
As noted above, the Tribunal has some concerns in relation to the couple’s failure to proactively engage with the delegate’s request for a DNA test. However, having regard to overall evidence provided, the Tribunal is satisfied that, on balance, Mr Okekeitu and his wife Mrs Daramy are married to each other under a marriage that is valid for the purposes of the Act. It also is satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and, further, that they live together and do not live separately or apart on a permanent basis. Accordingly, the requirements in s 5F(2)(a) - (d) of the Act are met at the time of this decision.
Conclusion
Given the findings outlined above, the Tribunal is satisfied that, at the time the visa application was made Mr Okekeitu was in a spousal relationship with his sponsor Mrs Daramy as required by cl 820.211 of Schedule 2 to the Regulations.
Further, the Tribunal is satisfied that, at the time of this decision, the parties continue to be in a spousal relationship as required by cl 820.221 of Schedule 2 to the Regulations.
In these circumstances, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations; and,
·cl 820.221 of Schedule 2 to the Regulations.
Katie Malyon

Member
ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994
Migration Act 1958
5F Spouse
(1) For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note:   Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
…
Migration Regulations 1994
1.15A     Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
…
Schedule 2
Subclass 820 -- Partner
820.21- Criteria to be satisfied at time of application
820.211 (1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
   (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(b) [repealed]
   (c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18 - by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18 - by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa - either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
…
820.22 - Criteria to be satisfied at time of decision
820.221 (1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
   (b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the           sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or the de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5), (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
   (ii) the applicant:
(A) has custody or joint custody of, or access to; or
        (B) has a residence order or contact order made under the Family Law Act 1975relating to at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
  (D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act   1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a)the sponsorship has been approved by the Minister and is still in force; and
(b)the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
   (b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
…
oOOo

[2024] AATA 2521

26 June 2024

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Immigration

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