OKEKEITU (Migration) - [2024] AATA 2521

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OKEKEITU (Migration)

Details

AGLC: OKEKEITU (Migration) [2024] AATA 2521
Case: [2024] AATA 2521
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, Mr Okekeitu, sought to establish that he was the spouse of his sponsor, Mrs Daramy, both at the time of the visa application and at the time of the decision. The Tribunal, presided over by Member Katie Malyon, had before it a substantial volume of information, exceeding that considered by the original delegate.

The central legal issue before the Tribunal was whether Mr Okekeitu met the criteria for being the "spouse" of Mrs Daramy, as defined by the Migration Act 1958 and the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the relationship was genuine and continuing, if they had a mutual commitment to a shared life as a married couple to the exclusion of all others, and if they lived together or did not live separately and apart on a permanent basis, both at the time of application and at the time of the decision. This involved considering the financial aspects, the nature of the household, the social aspects, and the nature of their commitment to each other.

The Tribunal acknowledged the extensive documentation provided, which detailed the couple's meeting, their subsequent marriage, the birth of their child, and their interactions, including a visit to Nigeria. However, the Tribunal noted that the delegate's decision was made without the benefit of all the information now available. The Tribunal concluded that, given the circumstances and the available evidence, the appropriate course of action was to remit the matter for reconsideration by the Minister.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with a direction that the applicant was taken to meet the criteria specified in cl 820.211 and cl 820.221 of Schedule 2 to the Regulations. This remittal allowed for a fresh consideration of the application in light of all the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEIssue 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.

Decision

Reasons for decision

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 MalyonMemberATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994Migration Act 19585F 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 19941.15A 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 2Subclass 820 -- Partner820.21- Criteria to be satisfied at time of application820.211 (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 decision820.221 (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

Ratio Decidendi

Legal Principle Established

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