Aikon Mensah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 181

Aikon Mensah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 181 (9 February 2021)
Division:GENERAL DIVISION
File Number(s):2020/7680
Re:Michael Aikon Mensah
APPLICANT

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

DECISION
Tribunal:Member W Frost
Date:9 February 2021
Place:Canberra

The decision under review is set aside and substituted so that the Tribunal declines to exercise the discretion to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa under section 501(1) of the Migration Act 1958 (Cth).
........................................................................
Member W Frost
Catchwords
MIGRATION – discretion to refuse to grant a Partner (Temporary) (Class UK) visa under section 501(1) of the Migration Act 1958 (Cth) – where visa was refused under s 501(1) because applicant did not pass the character test - substantial criminal record under s 501(6) – whether discretion in s 501(1) to refuse to grant Applicant the Visa should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – consideration of non-refoulement obligations – impact on family members – reviewable decision set aside and substituted – Tribunal declines to exercise discretion to refuse to grant applicant a Visa under subsection 501(1)
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Anae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 6
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
JNMK v Minister for Home Affairs [2019] FCA 1758
Kalm v Administrative Appeals Tribunal [2013] FCA 890; (2013) 215 FCR 221
Mehta v Minister for Immigration and Border Protection [2015] FCA 1096; (2015) 238 FCR 439
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
R v Belcher [2016] SASCFC 17
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459
SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459Whitta and Minister for Immigration, Local Government and Ethnic Affairs [1990] AATA 759
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018)
REASONS FOR DECISION
Member W Frost
9 February 2021
INTRODUCTION

This proceeding concerns a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), to refuse to grant the Applicant, Mr Michael Aikon Mensah, a Partner (Temporary) (Class UK) visa (Visa). As a result of that decision, Mr Aikon Mensah’s associated application for a Partner (Residence) (Class BS) visa was also refused.
Mr Aikon Mensah’s application for the Visa was refused under subsection 501(1) of the Migration Act 1958 (Act), because a delegate of the Minister was not satisfied that Mr Aikon Mensah passed the character test under the Act due to having a ‘substantial criminal record’, in circumstances where he had been ‘sentenced to a term of imprisonment of 12 months or more’. In this regard, in 2009, Mr Aikon Mensah was sentenced in Sweden to a term of imprisonment of 1 year for the offences of ‘assault’ and ‘rape’ committed in 2005 and 2008, respectively, against his then wife. The conviction and 12 month sentence was subsequently confirmed by a Swedish Court of Appeal.
Mr Aikon Mensah arrived in Australia in 2014 and shortly thereafter applied for the Visa. He married an Australian born citizen in 2015 and they have a 3 year old child, with another expected to be born next month. Following the delegate’s decision to refuse Mr Aikon Mensah’s application for the Visa in 2020, he applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. In January 2021, a hearing by the Tribunal was held using video conferencing technology in circumstances where all in-person hearings at registries of the Tribunal have ceased in response to the COVID-19 pandemic, unless there were exceptional circumstances. Mr Aikon Mensah appeared by video link from the immigration detention centre at Villawood in New South Wales (Villawood). The Tribunal is satisfied that the parties were given a reasonable opportunity to provide evidence and present their arguments at the hearing, noting sections 33A and 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The Tribunal has considered all documents in the bundle of documents filed in this proceeding on 4 December 2020, pursuant to section 501G of the Act,[1] together with the parties’ respective Statement of Facts, Issues and Contentions[2] and the following additional documents filed by the parties:
[1] Exhibit R1.
[2] Applicant’s Statement of Facts, Issues and Contentions filed on 21 December 2020 and Respondent’s Statement of Facts, Issues and Contentions dated 11 January 2021.
(a)Witness Statement of Mr Aikon Mensah;[3]
[3] Exhibit A1.
(b)Witness Statement of Ms Belinda Aikon Mensah dated 20 December 2020;[4]
[4] Exhibit A2.
(c)Supplementary Witness Statement of Ms Belinda Aikon Mensah dated 8 January 2021 with attachments;[5]
[5] Exhibit A3.
(d)Witness Statement of Mr Christopher Coxhead dated 19 December 2020;[6]
[6] Exhibit A4.
(e)Witness Statement of Mr Tony Vidovic dated 19 December 2020;[7]
[7] Exhibit A5.
(f)Witness Statement of Ms Leah Lyons dated 18 December 2020;[8]
[8] Exhibit A6.
(g)Witness Statement of Mr Michael Kreskas dated 18 December 2020;[9]
[9] Exhibit A7.
(h)Witness Statement of Mr Shawn Lyons filed on 21 December 2020;[10]
[10] Exhibit A8.
(i)Witness Statement of Ms Jessica Harris dated 20 December 2020;[11]
[11] Exhibit A9.
(j)Witness Statement of Ms Neita Lyons dated 19 December 2020;[12]
[12] Exhibit A10.
(k)Witness Statement of Mr Geoffrey Poole dated 20 December 2020;[13]
(l)Witness Statement of Mr Wayne Lyons dated 20 December 2020;[14]
(m)Medical Report of Dr Lokiny Gnanendran, General Practitioner, dated 7 January 2021;[15]
(n)Medical Report of Dr Gnanendran dated 19 November 2020;[16]
(o)Medical Report of Professor Bruce Stevens dated 21 December 2020 with attachment;[17]
(p)Document entitled ‘Ghana Travel Advice & Safety’, published on the website ‘smartraveller.gov.au’ and filed on 21 December 2020;[18]
(q)Document produced by UNICEF on education in Ghana filed on 21 December 2020;[19]
(r)Text messages between Mr Aikon Mensah and his former wife (Ex-wife);[20]
(s)Bundle of documents filed on 30 November 2020 produced by the Tribunal and the Department pursuant to a Freedom of Information request lodged on behalf of Mr Aikon Mensah;[21] and
(t)National Police Certificate in relation to Mr Aikon Mensah dated 9 January 2021.[22]
[13] Exhibit A11.
[14] Exhibit A12.
[15] Exhibit A13.
[16] Exhibit A14.
[17] Exhibit A15.
[18] Exhibit A16.
[19] Exhibit A17.
[20] Exhibit A18. Mr Aikon Mensah’s Ex-wife’s name has not been published pursuant to a confidentiality order to protect her identity.
[21] Exhibit A19.
[22] Exhibit A20.
BACKGROUND
Mr Aikon Mensah is a 39 year old national of Ghana.[23] Mr Aikon Mensah’s parents, two brothers and three sisters reside in Ghana.[24]
[23] Exhibit R1, G2, pages 30, 85 and 128-130.
[24] ibid., pages 41-43.
In 2001, aged 20, Mr Aikon Mensah moved from Ghana to Finland to play professional football (or soccer).[25]
[25] ibid., page 46.
In 2004, Mr Aikon Mensah’s first child, a daughter, was born in Finland to his Ex-wife, a Finnish citizen (First Child).[26]
[26] Exhibit R1, G15, page 473. The First Child’s name has not been published pursuant to a confidentiality order to protect her identity.
In February 2005, Mr Aikon Mensah married his now Ex-wife.[27]
[27] Exhibit R1, G13, page 335.
In December 2005, Mr Aikon Mensah moved to Sweden, together with his Ex-wife and the First Child, to pursue his football career.[28]
[28] Exhibit R1, G2, page 47.
In June 2009, Mr Aikon Mensah and his Ex-wife divorced.[29]
[29] Exhibit R1, G13, page 335.
In December 2009, Mr Aikon Mensah was convicted of the ‘assault’ and ‘rape’ of his Ex-wife (Offences) by the Ystad District Court in Sweden and sentenced to 12 months imprisonment.[30] The police certificate produced by Swedish authorities records the assault as having occurred in the period 9 to 15 July 2005 and the rape having occurred in the period 4 to 5 September 2008.[31]
[30] Exhibit R1, G2, page 19.
[31] ibid.
From December 2009 to October 2010, Mr Aikon Mensah resided in Ghana.[32]
[32] Exhibit R1, G2, page 32.
In November 2010, the Skane and Blekinge Court of Appeal in Sweden affirmed Mr Aikon Mensah’s conviction for the Offences.[33] Mr Aikon Mensah attended this hearing in Sweden.[34]
[33] ibid.
[34] ibid.
From January 2011 to November 2011, Mr Aikon Mensah resided in Ghana.[35]
[35] ibid.
Between November 2011 and June 2014, Mr Aikon Mensah resided and played professional football in Vietnam.[36] In October 2013, Mr Aikon Mensah met his now wife, Ms Belinda Lyons, an Australian born citizen, in Vietnam.[37]
[36] ibid; G2, page 47.
[37] Exhibit R1, G15, pages 464-465 and 469-470.
From June 2014 to October 2014, Mr Aikon Mensah resided in Ghana.[38]
[38] Exhibit R1, G2, page 32.
On 30 October 2014, Mr Aikon Mensah arrived in Australia on a Visitor (FA-600) visa and has resided in Australia for over 6 years.[39]
[39] ibid., page 83.
On 29 December 2014, Mr Aikon Mensah applied to the then Department of Immigration and Border Protection for a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa,[40] the latter being a permanent visa allowing a person to remain in Australia indefinitely.[41] Ms Belinda Lyons sponsored Mr Aikon Mensah as his partner.[42] As a consequence of Mr Aikon Mensah’s application, he was granted a Bridging Visa A (Class WA) visa.[43]
[40] ibid., pages 48-71; G4, pages 234-257.
[41] accessed on 22 January 2021.
[42] Exhibit R1, G5, pages 258-267.
[43] Exhibit R1, G14, page 344.
On 4 July 2015, Mr Aikon Mensah married Ms Lyons.[44]
[44] Exhibit R1, G2, page 126; G15, page 443.
Between April and June 2016, the Minister’s Department made three separate and distinct requests for more information from Mr Aikon Mensah in relation to his Visa application.[45] Relevantly, the Department’s letter to Mr Aikon Mensah of 16 May 2016 stated that:[46]
[45] Exhibit R1, G7, pages 269-278; G8, pages 279-294; and G9, pages 295-300.
[46] Exhibit R1, G8, page 286.
Character requirements – Finland, Sweden, Vietnam Police Certificate
In order to be granted a visa for entry to Australia you must meet the character requirement. You must provide a police certificate from each country where you have lived for a total of 12 months or more in the last 10 years. [emphasis in original]
On 3 June 2016, the Swedish Police produced a certificate, which listed the Offences.[47] The certificate was translated in Australia on 25 October 2016 by an accredited translator.[48]
[47] Exhibit R1, G2, pages 19-20.
[48] ibid.
On 6 September 2016, the Department made another request to Mr Aikon Mensah for more information in relation to his Visa application, including a police certificate from Sweden.[49]
[49] Exhibit R1, G10, pages 301-312.
On 13 October 2016, Mr Aikon Mensah’s then representative submitted to the Minister’s Department a ‘Notification of incorrect answer(s)’.[50] The document noted that Mr Aikon Mensah had incorrectly stated that he had not been convicted of a crime or offence in any country and confirmed that he had been convicted for ‘two offences in Sweden in 2005 and 2008’. The reason for the provision of the incorrect information was recorded as:[51]
Oversight. I was too excited about relationship with Belinda and at that stage we just wanted to be together and did not concentrate on the answers we submitted.
[50] Exhibit R1, G6, page 268.
[51] ibid.
In 2017, Mr Aikon Mensah’s second child, another daughter, was born to Ms Belinda Aikon Mensah (nee Lyons) in Australia (Second Child).[52]
[52] Exhibit R1, G2, page 85. The Second Child’s name has not been published pursuant to a confidentiality order to protect her identity.
On 27 June 2019, the Minister’s Department sent Mr Aikon Mensah a ‘Notice of intention to consider refusal of your visa application under section 501(1) of the Migration Act 1958’, because of information indicating that he did not pass the ‘character test’.[53] Mr Aikon Mensah was invited to comment or provide information on whether he passed the character test and on whether the decision-maker should exercise the discretion to refuse his application for the Visa.
[53] Exhibit R1, G14, pages 341-354.
In July 2019, Mr Aikon Mensah’s former representative provided a written statement and supporting evidence in response to the Department’s notice of June 2019.[54]
[54] Exhibit R1, G2, pages 122-125.
On 21 October 2020, a delegate of the Minister decided to refuse Mr Aikon Mensah’s application for the Visa under section 501(1) of the Act.[55] As a result, Mr Aikon Mensah’s associated application for a Partner (Residence) (Class BS) visa was also refused by operation of law.[56]
[55] ibid., pages 7-18.
[56] ibid., page 7.
On 18 November 2020, Mr Aikon Mensah was notified of the decision by letter of the same date which also confirmed that his Bridging Visa A (Class WA) visa ‘has been cancelled by operation of law’.[57] As a result, from that time, Mr Aikon Mensah was an ‘unlawful non-citizen’ in Australia and has been in immigration detention at Villawood since November 2020.
[57] Exhibit R1, G2, pages 7-9.
On 18 November 2020, Mr Aikon Mensah applied to the Tribunal for review of the delegate’s Visa refusal decision.[58]
LEGISLATION & POLICY
[58] Exhibit R1, G1, pages 1-5.
The Act
Section 501 of the Act relevantly provides that:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;... [emphasis in original]
Section 500 of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501 of the Act.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body having functions or powers under that Act, provided the directions are about the performance of those functions or the exercise of those powers (subsection 499(1)) and are not inconsistent with the Act or the Regulations made under it (subsection 499(2)). The person or body to whom the directions are given must comply with them (subsection 499(2A)).
The Minister has made a direction under section 499 of the Act for the purposes of decisions made under, among others, section 501 of the Act, being Direction 79 titled, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79), which commenced on 28 February 2019 and applies to a decision made in relation to the application for the Visa made by Mr Aikon Mensah.
The Preamble to Direction 79 sets out its objectives, general guidance and principles, relevantly including:
(a)under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test (paragraph 6.1(2));
(b)where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse the visa given the specific circumstances of the case (paragraph 6.1(2));
(c)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (paragraph 6.2(1));
(d)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community (paragraph 6.3(1));
(e)the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they commit serious crimes in Australia or elsewhere (paragraph 6.3(2));
(f)a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children, should generally expect to forfeit the privilege of staying in Australia (paragraph 6.3(3));
(g)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify refusing the visa (paragraph 6.3(4));
(h)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, however Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (paragraph 6.3(5));
(i)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia (paragraph 6.3(6));
(j)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa application should be refused (paragraph 6.3(7)).
Paragraph 7(1) of Direction 79 provides that, informed by the principles in paragraph 6.3, a decision-maker must take into account the considerations in Part B to determine whether a non-citizen will forfeit the privilege of being granted a visa. That is, Part B of Direction 79 relates to visa applicants.
Part B of Direction 79 identifies the considerations relevant to deciding whether to refuse a non-citizen’s visa. It comprises three ‘primary considerations’ and four specified, but non-exhaustive, ‘other considerations’ which must be taken into account in relation visa applicants. Paragraph 11(1) in Direction 79 sets out the three ‘primary considerations’ as follows:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)The best interests of minor children in Australia (Primary Consideration 2); and
(c)Expectations of the Australian community (Primary Consideration 3).

Paragraph 12(1) in Direction 79 lists the following four ‘other considerations’ that must be taken into account where relevant:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Paragraph 8 of Direction 79 states that:
(1)   Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)   In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)   Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)   Primary considerations should generally be given greater weight than the other considerations.
(5)   One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for the Tribunal in this proceeding are:
(a)whether Mr Aikon Mensah passes the character test under subsection 501(6) of the Act; and
(b)if not, whether the Tribunal should exercise the discretion in subsection 501(1) of the Act to refuse to grant Mr Aikon Mensah the Visa.
EVIDENCE
Mr Michael Aikon Mensah
Mr Aikon Mensah filed an undated Witness Statement on 21 December 2020 in support of his application to the Tribunal, which relevantly said:[59]
[59] Exhibit A1.
I have always had good moral values and live up to a good moral standard in regard to my words and my actions. I have never been the type of person to engage in football booze ups or wild partying despite the fact I had plenty of opportunities to do this as I played soccer at an elite level and there were always parties going on. My character has been shown to be extremely high and everyone who has mixed with me from work mates, school friends, football team mates and relative would be prepared to back that up.
The reason I said I did not have a criminal conviction when coming to Australia and applying for the spouse visa is that the information that I received from my lawyer was not clear. My understanding was because I had appealed the court decision that the conviction did not stand. By this I mean I did not think there was a conviction because I was appealing. After the second case, I asked my lawyer to appeal the supreme court in Sweden. I wanted to take the case as far as I could as I wanted to prove my innocence and clear my name. Had I known that the conviction stood I would have declared it.
In May 2016 we were asked by the department to provide ‘more information’. Police certificates from Sweden, Finland and Vietnam were required. I received the Finnish and Swedish certificates some time in July or August but had a lot of trouble with getting a police certificate from Vietnam, which I ended up getting in July 2017. In October of 2016 after I had received the Swedish police certificate, my wife Belinda and I went to see our lawyer to tell her what we had received. The appointment was at her office on 6th October 2016 4.00pm at 13 London Circuit Canberra. I explained to her and another lawyer or legal assistant who was also in the meeting that I had received the certificate with criminal convictions and had a copy of the certificate in Swedish with me to give to her. I explained to her that I was not aware that I had the convictions. I thought that because I had appealed the case the conviction did not stand. I asked for her advice on what we needed to do to declare and rectify the situation.
She also said we needed to get the document translated from Swedish to English. At another appointment on the 12th October 2016 430pm at 13 London Circuit Canberra I asked her to declare the convictions to the department and say I didn’t declare them as my understanding was because I had appealed the court decision that the conviction did not stand. Had I known that the conviction stood I would have declared it when completing any application form. I note that on page 72 of the ' G' documents the reason the lawyer provided to the department was not an accurate summary of what we had discussed in our meeting. She said the reason why incorrect information was provided was ‘Oversight. I was too excited about the relationship with Belinda and at that stage we just wanted to be together and did not concentrate on the answers we submitted’ This was certainly not the case. We asked her to say that I was unaware the conviction stood. I had not seen this document until after I received the refusal letter on the 18th November 2020 and was not aware this was the response she gave the department and I did not authorise her to make that incorrect statement. Had I been aware, I would have asked for the response to be changed to reflect what we had discussed with her in our two meetings.
I did know that I lost the first and second court hearings but as I mentioned the information I received from my lawyer was not clear. I had never been in trouble or had problems with the law prior to this. So my understanding of how the court process worked was very little. My lawyer did not explain things to me well and the whole case was delivered in Swedish. I don't speak or understand Swedish and the translator did not explain things to me in a way that I could understand. The language barrier made it difficult to understand what was actually going on or happening. After asking my lawyer to appeal to the supreme court (highest court in Sweden) I was told it would take some time. I had already overstayed on the visa I held and had to leave Sweden. I tried many times to contact my lawyer by phone and email to find out what was happening but could never get in contact with him, I assumed everything was still pending and that I didn’t have convictions to my name. Obviously now I know that is not the case.
In 2007 my ex-wife and I started to have issues with our marriage, she had a friend who was trying to convince her to divorce me. In 2008 she decided she wanted to get divorced after discussions I agreed. She brought home some divorce papers and we both filled out the papers and signed stating that we would have shared custody of our daughter [First Child]. Our custody agreement said that I would have [First Child] one day and two nights in every week. In the same year 2008 my ex-wife's father passed away from cancer. She went back to Finland for the funeral, I agreed that she should take [First Child] with her to the funeral. When she returned from Finland she did not let me see [First Child] and I asked her why she was not coming to spend the days with me that we had agreed upon. She told me she was mourning the death of her father and felt like she needed to have our daughter with her as it made her feel better. I agreed to do this for a short time as I knew it was a difficult time for her.
My ex-wife told me she wanted to move back to Finland to be with her family (mother and sisters) but because we have shared custody of our daughter she could not leave Sweden with [First Child] without my permission. So in 2008 she made allegations against me saying to the police that I assaulted her in Finland in 2005 and raped her in Sweden in 2008.
My ex-wife and I got married in 2005, my brother-in-law made a video of the day for us. Two days after the wedding I was at home alone and decided to watch the video. The video showed her doing something that concerned me. We had the reception at our house with a small group of family and friends and she was in the kitchen with her ex-boyfriend and he was holding her like he was her husband, and when the camera went to them they separated themselves but it was too late as it had already been recorded. I then called her and asked her to come home so we could discuss what I had watched, she was arguing with me about it. She came home and I showed her the video and she was speechless and went to the bedroom and locked the door and called her father to come to the house. I was so upset that I left the house before her father arrived. He called me and asked me to return home. I showed him the video when I got home and he tried to tell me that they were just friends. She accused me of assaulting her on this day three years later. There was no evidence that I had assaulted her such as photos etc, just her word against mine.
Before we officially divorced we had moved into separate rooms of the house and the football club I was playing for at the time was finding me another house to live in. We were not living as a married couple for several months before that, we had stopped having sex for at least three or four months. I was not interested in having sex with her at all. So saying that I raped her makes no sense. I believe she made the stories up so she was able to gain full custody of [First Child] so she was able to move back to Finland.
I now understand and accept that I have these criminal convictions but I still maintain that I am innocent. Until I received the police certificate from Sweden I truly was not aware that the convictions stood. I believe the language barrier, my race and poor representation is the reason I was convicted.
Belinda and I now have regular contact with my ex-wife, mostly regarding our daughter [First Child]. She came to Australia with [First Child] on her first visit here. My wife, Belinda and I paid for her airfare so she could accompany [First Child]. We wanted to make sure [First Child] was ok, especially since she had not spent much time away from her mum before. When she visited we spent a lot of time together having lunches, coffees, dinner, shopping and sight seeing together. If my ex-wife really though I was capable of assault and rape I really don't think she would want to spend any time with me or agree to sending our daughter to spend time with me.
I have been living in Australia for just over six years and have been working for the same company for over 5 years. I have a very strong work ethic, I am a dedicated employee and my staff trust me and have a strong respect for me.
I am employee by a company called Frisco Direct Pty Ltd and Homemakers Hire.com.au Pty. My role is as Operations Manager. I oversee five staff. I liaise with sales managers at 3 stores, coordinates showroom presentation, warehouse management, stock management, deliveries installations, customer warranties, vehicle management and staff management. My boss has said I have one of the best work ethics of any employee that he has employed over the past 30 years. He says that my staff work to a high standard under my instruction and supervision and that my work is deeply valued within the companies. He says he cannot replace my knowledge of product and brands, my leadership and direction for my staff and my ability to set up a showroom.
I have also been playing soccer since I arrived in Australia. I played for Canberra Croatia FC for three years and then I was asked to take on the Under 20's men's NPL team as their coach. In 2018 I was a player/coach as I took on the Under 20's team when their coach suddenly left. For the past two years I have only coached and completed the FFA 'C license' for coaching. During the summer I have organised training sessions for kids from friends families to help them prepare for trials in NPLY teams in various clubs. These are all positions of trust and responsibility and respect and I had to prove myself to gain them because of that I believe I am not a risk to the Australian community.
I have been attending church with my wife since I arrived in Australia and I have been involved in the music and media team since I have been attending. I operate the sound desk, the media screen and video camera for live streaming. I love to share the word of God among my peers from workmates to soccer mates and even in the IDC [Immigration Detention Centre]. I have a good heart and want to help people and I am a very easy going and approachable person. I am no risk to the community.
I love my wife very much and value our relationship. We have been together for over seven years. We do everything together as husband and wife. We have created wonderful memories and a beautiful baby girl, [Second Child], and also we have a baby boy on the way due in March next year.
We have so much in common that we do almost everything together. She is the person I want to spend the rest of my life with. We started a family together and are paying off a home together. The mortgage is currently in Belinda's name as I was not able to apply for a loan until I was a permanent resident but both of our salaries contribute to the mortgage. I actually earn a higher salary than Belinda as she only works part time since we had [Second Child].
Belinda had medical complications during the birth of our daughter [Second Child]. She has issues with anxiety and post traumatic stress. I have to really take care of her when her anxiety issues arise. It tends to happen more often when she is stressed at work. Often when she comes home I will talk to her and hug her to help her calm down and relax and stop the anxiety attacks. It hasn't been easy but I love her and we get through this a family. With our second baby on the way she has been classed as 'high-risk' pregnancy due to what happened with her first pregnancy and birth. She is not supposed to do anything like lifting and needs to take rest. The doctor said stress is also bad for her. She need to around to help with these things to make sure she is ok. The baby is due in March and she needs me to be there and wants me to be there. I want to be there for her and the birth of our son. I need to be there for her for emotional and physical support. She is really struggling at the moment, this situation has been traumatic for her and she is struggling to sleep and eat. She calls me at least two or three times during the night because she can't sleep and she is worried. Sometimes when she call we can be talking for hours, especially if she is worried. I try to calm her down so she can sleep. I worry about her and the baby. It has been a very challenging time for us, Belinda really relies on me, I am very important in her life and I think she wound not cope emotionally and psychologically if I had to leave Australia. It would be difficult for her to care for [Second Child] and our baby boy alone.
After the birth of [Second Child] Belinda went back to work part time, four days per week. And I have been working nine days per fortnight. Together we are able to pay our mortgage and bills without any problems and we are able to save a little money too. I believe if I had to leave Australia that she would not be able to support herself or our children financially, particularly as she will be taking maternity leave from March. During this time she will only be earning about $600 per week before tax from her employer. She would not be able to stay in our home as she could not afford to pay the bills and mortgage. I am extremely worried if I had to leave that she and my children would become homeless. As a husband and a father, I don't want to fail my wife and children. They all need me and want me to be with them. I want to take care of my family. It's not only my wife and children in Australia I worry about I am also concerned about my older daughter [First Child] In Finland and my parents in Ghana who we support financially.
[Second Child] was born on the 4^th August 2017 at Canberra Hospital. Belinda had to have an emergency caesarean because she had an abruption and was bleeding badly. She was rushed to theatre to give her and [Second Child] the best chance of surviving as she had lost a lot of blood and [Second Child] was in distress and her heart beat kept dropping very low. Belinda had a general anaesthetic so when [Second Child] was born the nurses brought her to me in the waiting room. I got to hold [Second Child] on my bear chest it was an amazing experience, she was so calm. [Second Child] and I have a very special bond because of this. I love her to death and wouldn't leave her for anything or go anywhere without her. She is my light and happiness. We have so much in common and do so much together. I am her primary carer every Tuesday while Belinda is at work. I take her to swimming lessons, we go to the park to ride her bike, she comes with me when I do little things like getting my hair cut. I wake up early every morning to get [Second Child] ready for the day. I get her dressed and help her brush her teeth and do her hair. When Belinda asks if she wants her to do her hair she always says ' no, daddy does it better'.
I think that [Second Child] would suffer dramatically if l had to leave Australia. ln the past few weeks since border force came to our house and brought me to Villawood her behaviour has changed a lot. She won't sleep in her bed and has to sleep in my spot in mine and Belinda's bed because she is too scared to be in her room. She won't eat well, she just keeps saying she isn't hungry. She has been having nightmares and waking up crying asking for daddy. As her father in the current position l am in, I feel so helpless that I am not able to make things better for her. She also wants to Facetime me constantly because she misses me so much. I am worried it would cause permanent psychological and emotional damage to her if I had to leave. I am also worried that we would not have regular contact if l had to go to Ghana as the phone network and internet are not very good there. I don't want her to ever think that I would abandon her. I love her so much, she is my princess.
If I had to leave Australia and go to Ghana, it would be terrible for [Second Child] as we have a special bond and it would be bad for her psychological and emotional state. I would be afraid that she would lose her connection with me as her father as communication from Ghana is terrible. The internet and phone networks are not very good there, plus communication long distance is a struggle. I already have to communicate long distance with [First Child] and it is sometimes a struggle. However the internet and phone networks are good in Finland where she lives which is why we are able to communicate daily from here in Australia. [Second Child] and Belinda call me many times during the day as they both are missing me. We are a very close family, this is the first time since I have been in Australia that we have been apart. Until border force came and took me to Villawood we had never spent a night apart. It has been extremely difficult for all three of us being apart. [Second Child] and Belinda are both struggling to sleep and are calling me all the time. [Second Child] is used to having me be there to do everything so when ever she wants to colour, draw, play, read or build stuff she has to call me because the wants me to be there.
I would also miss the birth of my son, meeting him is something I can’t wait for. My family is everything to me. I want my children to have the life I never had, I had to work as a young person to be able to get money so I could attend school. I don't want to fail as father and mentor, a carer, a protector and a provider to my children.
I have my family in Australia, leaving would be unbearable for me and them. I don’t want my wife, daughter and son to feel like I have abandoned them. Living in Ghana would also be unbearable as I have not lived there for the better part of 20 years, I moved away when I was about 20 yeas old. I don’t have any contacts or connections there for jobs or work. The only people I know are my parents and siblings and I currently financially support them. Living in Ghana with my wife and children would be terrible as we would not be able to support ourselves well financially. It would be very hard for Belinda to get a job as she doesn’t speak the local language and wages are not very good in Ghana. It would be hard for our children in Ghana, the schools are overcrowded and the standard of education is poor compared to Australia. I want my children to have the best opportunities in life.
[Second Child] and [First Child] have built relationships with our family here in Australia, [Second Child] is very close to her grandparents and her cousins. I don’t want her to lose the relationship she has with them, which would most certainly happen if we moved to Ghana. [First Child] normally visits once or twice a year (except for this year due to Covid) she is also close to her grandparents and cousins here and I would be worried that she would lose contact with them if I or we lived in Ghana. We would not be able to afford to buy her tickets to visit us if we lived in Ghana so we would not see her.
For the past five years I have been working very hard and don’t want to lose all that hard work. I don’t want to lose the community I have built either particularly with the football club and church I am involved with. I have made some very good and close friendships since I have been her and would miss that.
I want to stay here with my family. I want to be able to build on the career I have started, help Belinda raise our children and provide for them. I have the heart of a good father and want the best for my children and family. I want to protect them an provide for them here in Australia. [errors in original]
Examination-in-Chief

Mr Aikon Mensah gave evidence to the Tribunal by video link from Villawood. Mr Aikon Mensah was referred by his representative to the aforementioned Witness Statement and he confirmed that it was true and correct to the best of his knowledge and that he did not wish to change anything in that statement.
Mr Aikon Mensah told the Tribunal that he understood the Visa had been refused because he had failed the character test due to his convictions in Sweden for the Offences. Mr Aikon Mensah was taken to the character declarations he made in the application for the Visa on 29 December 2014 and agreed that he had been convicted 5 years before this time, but he did not declare the Offences because he considered the convictions did not stand as he had instructed his Swedish lawyers to appeal.[60]
[60] Transcript of Proceedings, page 18.
Mr Aikon Mensah confirmed that he arrived in Australia in October 2014 and shortly thereafter on 29 December 2014 applied for the Visa, which application was said to be rushed because the cost of lodging such an application was to rise by approximately $3,000 from the new year. Mr Aikon Mensah completed a paper-based form and provided it to his then representative who completed the online application form for the Visa. In this regard, Mr Aikon Mensah was taken to the character declarations in the paper-based application form where he had indicted he had no convictions for any offences. Mr Aikon Mensah told the Tribunal that he did not understand the question because he had appealed his conviction.[61]
[61] ibid., page 19.
Mr Aikon Mensah was taken to the Notification of Incorrect Answers form provided to the Department in October 2016, which relevantly stated that the reason for providing incorrect information was an ‘oversight’ and that he was ‘too excited about relationship with Belinda…and did not concentrate on the answer’.[62] Mr Aikon Mensah told the Tribunal that when he met with his then representative he had told her he was unaware that the convictions stood and he had not instructed her to answer the question as she did. In this regard, Mr Aikon Mensah said the notification was unauthorised and the former representative was not acting pursuant to his instructions. Mr Aikon Mensah confirmed that he only became aware of the 2016 response provided to the Department when he received the Visa refusal decision in 2020.[63]
[62] Exhibit R1, G2, page 72.
[63] Transcript of Proceedings, pages 20-21.
In relation to his ties to Australia, Mr Aikon Mensah described his wife’s family as being very ‘welcoming’ and ‘loving’, they were married in 2015 and have always been together except since he has been in Villawood. Mr Aikon Mensah was raised as a Christian and attends church in Queanbeyan where his father-in-law is the Senior Pastor. Mr Aikon Mensah discussed the birth of the Second Child and said it was an emotional time but a ‘very bad experience’ due to complications that still impact his wife.[64] The Tribunal was told that:[65]
[I]t hasn’t been easy but because we love each other we go through these things together as a family, it’s day by day situation but most of the time even if I’m at work she will call me most of the time and say, “I cannot cope”. I need to be on the phone with her for a while to just try to calm her down…because the trauma she went through, I don’t wish it for anyone…it was very hard, even me as a husband…
[64] Transcript of Proceedings, page 22.
[65] ibid., page 23.
Mr Aikon Mensah told the Tribunal that his daughter, the Second Child, was ‘struggling’ being separated from him and he too was finding the situation ‘very stressful’. The Second Child is sleeping on Mr Aikon Mensah’s side of the bed at home to feel close to him and they often speak to each other during the night via FaceTime.[66]
[66] ibid.
Ms Aikon Mensah’s current pregnancy was said to be ‘unexpected’ and classified as ‘high risk’. As a result, Ms Aikon Mensah is limited in the tasks she can undertake and her husband had been doing the majority of tasks around the house, until detained in Villawood. At the moment, the family is relying on Mr Aikon Mensah’s salary from accrued annual leave but he is unsure when that will end. It was said to be ‘hard’ for the family without Mr Aikon Mensah present. For example, Ms Aikon Mensah has experienced panic attacks that have required her parents to attend the home rather than her husband being able to support her.[67]
[67] ibid., page 24.
Mr Aikon Mensah also described the ‘very special bond’ he has with the First Child, with whom he spoke daily and was said to have a connection with Australia, having visited three times. In this regard, Mr Aikon Mensah said it would be ‘very difficult’ if he had to leave the country because the First Child will not be able to see her unborn half-brother due in March this year. Mr Aikon Mensah sends money on a monthly basis to his Ex-wife for the First Child and said he would be unable to continue to provide for her financially if he was unable to remain in Australia in circumstances where the salary is ‘not much’ in Ghana. Additionally, Mr Aikon Mensah said his First Child would not be able to visit him in Ghana and they would lose their connection, including because of the poor internet connection in Ghana. Mr Aikon Mensah said that, apart from the ‘accusations’, his relationship with his Ex-wife was ‘not on bad terms’. They communicate predominantly via text message about the First Child, but also FaceTime following him talking to the First Child.[68]
[68] ibid., page 25.
Mr Aikon Mensah also briefly described his connection with his nieces and nephews in Australia and said that their parents, his brother and sister-in-law, had shown him a degree of love he had not previously received. In relation to his parents-in-law, Mr Aikon Mensah said they had received him as a son and done ‘a lot’ for him and his family. The family was said to do everything together and have a great bond that Mr Aikon Mensah does not want to lose. To this end, the Tribunal was told that he wanted to ‘be there’ for his children as a father. Mr Aikon Mensah also noted that he was financially supporting his family in Ghana through his remuneration in Australia.[69]
[69] ibid.
Mr Aikon Mensah also told the Tribunal about his employment as a warehouse manager of 5 employees, his involvement in soccer in Canberra and the church.[70] In relation to the prospect of leaving Australia for Ghana, Mr Aikon Mensah said that he left when he was 20 years old and only knows his parents and siblings. Work would be ‘very hard for me to get’ without established connections. The education system was said to not be comparable to Australia, being overcrowded and sparse. Medical assistance would also be ‘very hard’, due to the cost and there being no universal coverage such as Medicare. In this regard, Mr Aikon Mensah said that they would be unable to treat his wife’s and Second Child’s conditions in Ghana. Mr Aikon Mensah said he wanted to stay in Australia with his family where it was best for them and so as to continue to build on his contribution at work, soccer and the church.[71]
[70] ibid., pages 26-27.
[71] ibid.
Mr Aikon Mensah told the Tribunal that he understood he had the convictions but was ‘truly’ unaware of them until he received the police certificate from Sweden in 2016.[72]
[72] ibid., page 28.
Cross-examination
By way of cross-examination, Mr Aikon Mensah told the Tribunal that he first met his now Ex-wife in 2002 or 2003 in Finland. Their one and only child, the First Child, was born in 2004. They married in 2005. Mr Aikon Mensah said that his relationship during this time with his then wife was ‘very good’. In 2006, Mr Aikon Mensah moved to Sweden to play professional soccer, but his wife stayed in Finland due to her studying commitments. In 2007, Mr Aikon Mensah’s then wife moved to Sweden and everything was ‘okay’; they were a ‘normal couple’ with occasional arguments. Mr Aikon Mensah was ‘not home much’ due to the travel commitments for work. Mr Aikon Mensah told the Tribunal that the couple began having relationship problems from 2007. Mr Aikon Mensah took issue with a female friend of his then wife who did not believe in ‘anything we believed in’; he told his then wife, ‘everything she said goes against our beliefs’. Mr Aikon Mensah also told his wife that this person was not good for her, but she did not listen to him.[73]
[73] ibid., pages 30-31.
The Tribunal was told that the relationship issues began when he came home one night to find a woman babysitting the First Child, because his then wife and her friend had gone out for a drink. In addition, Mr Aikon Mensah said his Ex-wife was often on Skype talking to her family in Finland while their First Child, then a toddler, was playing by herself; she was not spending time with their daughter. Mr Aikon Mensah confirmed that his Ex-wife’s father was unwell around this time.[74]
[74] ibid., pages 31-32.
Mr Aikon Mensah said that he does not speak Swedish and most soccer coaches and players in that country spoke English. He only has a ‘few words’ of Swedish. Mr Aikon Mensah told the Tribunal that he was arrested after a training session and the police spoke to him in English. An English interpreter was also present when Mr Aikon Mensah discussed the matter with his lawyer.[75]
[75] ibid., pages 35-36.
In relation to the situation in Ghana, Mr Aikon Mensah said that his parents and siblings live in Accra. His parents own a house, but not his siblings, all of whom rent. When asked whether his parents are willing to help him settle in Ghana should he return, Mr Aikon Mensah said that his father is almost 80 and his mother 72 years old, they have medical issues and he pays for their medication on a monthly basis. In this regard, Mr Aikon Mensah said that his parents cannot help him because he supports them financially as well as supporting his siblings with the school fees of his nieces and nephews in Ghana. Mr Aikon Mensah said he was unsure what non-material support his parents could provide if he were to return to Ghana.[76]
[76] ibid., pages 37-38.
Mr Aikon Mensah and his wife had discussed moving to Ghana with their children (the Second Child and their unborn son due in March 2021), but that such an outcome ‘is not going to help either of us, especially our daughters’. A property owned by Mr Aikon Mensah in Ghana was said to be incomplete and paying the monthly rent for another property would be ‘very difficult’, due to the rate of wages in that country and it would be hard for his family to adjust to the living conditions. In this regard, Mr Aikon Mensah’s parents could not assist with housing.[77]
[77] ibid., page 38.
In relation to moving to a third country other than Ghana, Mr Aikon Mensah said he and his wife had not discussed this possibility; his immediate family is from Australia and he ‘would prefer that they stay’ in this country because otherwise they would potentially have to learn a new language, culture, make new friends and leave family behind, all of which would be ‘a traumatic experience for them’, especially for the Second Child and her unborn brother.[78]
[78] ibid., page 39.
Furthermore, Mr Aikon Mensah said he could live in a country like Vietnam where he previously played professional football, but that he would need a valid work visa. Mr Aikon Mensah said he wants to live legally in a country and that the best proposition is for him to stay in Australia to raise his children. The Minister’s representative asked Mr Aikon Mensah whether, if he had to leave Australia, it was possible for him to live somewhere else. Mr Aikon Mensah said it would be a ‘big problem’ for his family, they would be separated from their family in Australia and the effect of that detachment is something he does not want for them.[79]
[79] ibid., pages 39-40.
In relation to education in Ghana, Mr Aikon Mensah said international schools were for ‘rich people’, as with in Vietnam, and that he would not be able to earn the income required to afford this level of education for his children. Mr Aikon Mensah dismissed the proposition that the real issue was one of affordability and said that a Ghanaian education was ‘not that great’ compared to Australia.[80]
[80] ibid., pages 40-41.
In relation to his employment, Mr Aikon Mensah confirmed that he is a warehouse manager and has previously worked in Australia briefly at a concrete and recycling centre, part-time at a warehouse distribution centre and also at a cabinetry business. Mr Aikon Mensah said he did not think he could secure a warehouse job on the open market in Ghana. While he agreed that he could apply for the same jobs in Ghana, securing one is ‘a different thing’ because it depends on ‘whom you know’, in addition to the wages being insufficient to support his immediate family. For example, Mr Aikon Mensah told the Tribunal that his friends in Ghana ask him for money even though they are university educated. Additionally, only two of Mr Aikon Mensah’s siblings work in Ghana, as teachers, while the balance sell products at markets and receive his financial support from Australia.[81]
[81] ibid., pages 41-42.
When asked by the Minister’s representative whether he would consider going to another country to secure employment if he was in Ghana and his immediate family in Australia, Mr Aikon Mensah said his ‘issue here is that just fighting this case’ to stay in Australia with his family; he does not want to be separated from them and for his Australian children to grow up without their father.[82] In this regard, Mr Aikon Mensah said playing soccer was ‘out of the question’ given his age, the salary of a warehouse manager in Ghana ‘cannot feed a family’ and he cannot coach soccer overseas with his current ‘C’ license; he requires the higher-level ‘A’ license.[83]
[82] ibid., page 42.
[83] ibid., page 44.
Mr Aikon Mensah was taken to his offending and firstly the ‘assault’ in 2005 after the wedding to his Ex-wife. Mr Aikon Mensah described their argument, the involvement of his then father-in-law and ‘struggling’ to explain himself due to language issues with his wife’s father. While Mr Aikon Mensah agreed that he was angry, he told the Tribunal that he had not assaulted his then wife and ‘never touched her. I never pushed her. I never did nothing to her’. He asked, ‘how can I assault my wife in front of her father?’ Mr Aikon Mensah recalled that the allegation was that he had ‘pushed’ his Ex-wife, thus constituting the ‘assault’. He denied that this incident occurred and stated that his attitude regarding domestic violence offences was that they were the ‘worst thing’ you can do to ‘your fellow human being’, especially women and that it was not good for anyone to ‘hit a woman or do anything to a woman’.[84]
[84] ibid., pages 46-47.
In relation to the offence of ‘rape’ committed in 2008, Mr Aikon Mensah provided the following evidence to the Tribunal, which is extracted in some detail given the nature of, and dispute over, the offending and its centrality to this decision:[85]
[85] ibid., pages 48-51.
I think it all - it all happened when - when we’ve signed the divorce paper and had a shared joint custody. So, it was one afternoon when she texted me that we have a meeting with a social worker. So, when we went to the meeting - when we went to the meeting she stated in the meeting that she wanted to - she wanted to have sole custody of our daughter. So, at that point, I was like ‘What do you mean? This is new. You never discussed this with me’. So, I told her that it’s not going to happen because we already signed the paper that we shared joint - we shared joint custody, so there’s no way I’m going to give you sole custody for you to take my daughter and I asked her ‘Why do you want to do that?’ and she said ‘I want to move back to Finland’ and I said, ‘Well, this is a new - this a different (indistinct), so it’s not going to happen. So, even with - we didn’t even finish at the meeting with the social worker, so she has to go to work. So, I told her that when you come home we’re going to have this conversation before we have another meeting with the social worker. So, when she came home I went to training, so when I came I came she was at home and, at that time - I think it was the - I think it was the day - it was the day that she was leaving the next morning for her father’s funeral, if I remember correctly. So, she came home from work and I told her that if you have time to talk and she said ‘I’m tired, let me just rest a little bit and then’ - okay, I just - I just didn’t bother. So, it was like - I don’t know the time, around maybe 9, or something, and then I went to her. When I went to her, I didn’t know that she just finished taking shower, so I knocked the door because we’re living in separate rooms in the house. So, I knock at the door and I said, ‘Are you in? Are you asleep or do you want to talk?’ And she said, ‘Well, I’m about to sleep’, so what it is. I said ‘Can we talk about what happened at the social worker that you wanted to take a test, you wanted to have sole custody’. So, I - she said, ‘I want to sleep, I don’t want to talk about it’ and I said, ‘No, do you know what, we need to talk about it because you are going to Finland the next day and I don’t know when you are coming back, so we need to talk about this. So, if I need to process something before you come back, I can do that’. So, I invited myself into the room, so I opened the door and I said ‘We need to talk’. She keep shouting ‘Get out of my room’ and I said ‘We - you need to talk to me because this is also important to me because we have agreed on - we agreed on our shared custody and now, all of a sudden, you tell - you’re telling me that you want sole custody. So, there was - there was a little bit of misunderstanding in there. She tried to kick - because when I sit on the edge of the bed, because I was standing there for a little while, so I sat on the edge of the bed and she used her leg to kick me to get out of the bed. So, as she’s kicking me, I hold her leg and I move - I throw the leg together and I said ‘Don’t kick me. If you don’t want to talk, it’s fine but don’t kick me, but we need to talk because before you want to go to sleep I want this issue talked about’. Because, at that time, to be honest with you, I was very upset because we have - we have - I said that ‘We have joint custody of our daughter and because you wanted to move to Finland you want to take sole custody and go’. So, we had a little bit of arguing in there, talking and talking, and then, at the end of it, I just left because I wasn’t getting any answer. So, I called my brother at that time. I had my daughter but I was living in Finland, so I called my brother to talk to her to have a conversation with me. So, she took the phone to talk to my brother for like a minute or two and then threw the phone to the wall. Luckily the phone didn’t break, so threw the phone ‘I don’t want to talk to anyone, you get out of the room’. So, I picked the phone and my brother was not online, so like the phone has cut or something. So, I tried to call my brother but it wasn’t going through - I don’t know what has happened with the phone at that time, so I just left the room - I just left the room and then I - I remember she went to the bathroom because she thought that I will come back to the room, so she went to the bathroom and locked the door. So, I went to my - my room and stayed there for a while and I was coming out to go use the bathroom to go sleep and I saw her coming out of the room and I asked her ‘Are you ready to talk?’ and she said no. Then I asked her, ‘Are you okay?’ She didn’t reply to me and she went to the room, so I went to use the bathroom and then I went to - to sleep.
…
But did she - but is she saying that you raped her, was her allegation that you raped on that night when you were trying to talk about the custody issue?‑‑‑Her - her allegation was that I was struggling with her and I put my finger into her vagina, that was her allegation. She said that I was struggling with her and I put my fingers into her vagina.
Did you do that?‑‑‑Sorry?
Did you do that?‑‑‑Did I do what?
Did you insert your fingers into her vagina?‑‑‑No.
No. You went into her room without her permission though; is that right?‑‑‑Yes, I went - I went and knock at the door and I asked if she’s asleep or if she’s ready to talk because (indistinct) earlier she told me that she need to rest and after we’re going to talk. So, that’s why I went to talk to her. I didn’t go without her permission. She gave the consent that ‘I will talk to you later, I just came back from work. Let me just rest and I will talk to you’.
But you just said when you knocked on the door, you said that she didn’t want to talk to you and she wanted to sleep; is that right?‑‑‑Yes. When I knocked - if I remember correctly, she said that she’s tired, she want to take a rest because she’s going to leave early in the morning to go to Finland. So, you entered the room and you sat on the bed at some stage?‑‑‑Yes, not - not right away, yes, at some stage.
Yes. But you sat on the bed?‑‑‑When I - when I get tired standing, yes, yes.
And she clearly did not want you to sit on the bed because she was kicking you?‑‑‑Yes, yes.
But you refused to leave; is that correct?‑‑‑Now, when she - when she starting kicking me, I took her leg because she was kicking with the leg, so I took - I hold her leg and I put her leg away. So, I stood up - I stood up and I - I think I just keeping that going that ‘We need to have this conversation because we need to talk about it’ because it was like fresh to me, it was like a new story to me that we had an agreement and then just went to the social worker, (indistinct) he just (indistinct) custody without even discussing with me. So, to be honest with you, I was upset, but I wasn’t there to rape her or to sleep with her because we - we haven’t been having sex for four months and I wasn’t interested in having sex with her. We’d been separated for four months. We living in a different room in the house.
…
The question is do you still say that you are innocent of this offence, despite the fact that you were found guilty by the court after a hearing and despite the fact that this conviction was upheld on appeal by another court - you still think you’re innocent?---Yes. I still maintain my innocence, because I was ready to take it to the highest court to prove my innocence.
…
Can I just ask you to explain what do you think - what made you think that this was her motive? What made you think that her motive was to gain custody of the kids?---Well, the reason why I’m saying this - like, in a - in a way I know she would do it. Because (indistinct). There was - there was this - after we separated - there was this lady who was - who was very close to me. Right? And then she wanted a relationship with me, but I told her that at the moment I’m not finally divorced yet, so I can’t have a relationship with her. She found her number somehow in my (indistinct) in the same house but different room. She found the lady’s number in my phone. She contact the lady, make a plan with the lady and tell the lady to go to the police station and tell the police that I have raped that lady. The lady went to the police station, take her advice because this - this lady - she was advised by her, and that lady I was talking about - the single mother. So this girl went to the police station, accused me of rape. The police called me. They told me about this lady who told the police station. The - the investigator called the lady and said that Michael is here, are you still standing on your claim that she (sic) raped you. And the lady said, ‘no.’ ‘It was this, and these people, who said to me - who said - who asked me to come and say this.’ So, I’m not surprised that she would go to the extent of telling police that I did this, just to get custody of my daughter. [emphasis added]

Mr Aikon Mensah told the Tribunal that following the Court of Appeal confirming his convictions and imprisonment, he instructed his then Swedish lawyer to lodge a further appeal and considered this had been done and that it was ‘in the system’, but that he did not ‘have more knowledge about it’. Mr Aikon Mensah confirmed that he had not heard further in relation to the matter, including ever being told that he had been acquitted.[86] In relation to this issue, Mr Aikon Mensah gave the following evidence that goes to the issue of the character declarations he made on his application for the Visa:[87]
So, you just gave evidence - you responded, ‘no,’ to the question, ‘Has any applicant been charged with any offence that’s currently awaiting legal action?’ You gave evidence earlier that you knew that you had a pending legal proceeding. You knew that you had something in the court system. Why did you respond, ‘no,’ to this question?---With - with that question, I misunderstood what that question meant. Because - because the - the - that issue was like, genuinely didn’t understand what that meant. Because I understand it was being appealing and stuff, there’s no criminal conviction recorded and there’s nothing (indistinct) until the appeal or the (indistinct) have gone through, that was my understanding. Clearly, I misunderstood that question.
The question was not asking you whether you had convictions. The question was asking you whether you had any offences that are awaiting legal action. So, it’s not asking whether you’ve been convicted. It’s asking whether you have anything that’s essentially in the legal system that hasn’t been dealt with. And you responded, ‘no,’ to that question. Can you explain why you responded, ‘no,’ in circumstances where you knew that you had an appeal that’s still in the system?---Yes, I think I misunderstood - I misunderstood the whole question itself, what that question meant. Because I think because my case was in the process of - so, I was waiting for legal action, so I didn’t think that it was, you know, that was why I misunderstood because - I just don’t know why, but I misunderstood what that question meant.
So, that is also an incorrect answer, is that not?---Sorry?
Sorry, this answer - the answer, ‘no,’ to the second question and the character declarations - that’s - that’s also an incorrect answer, isn’t that correct - is that correct?---Yes, yes, yes.
And why did you not instruct your - well, let me - I withdraw that question. Did you instruct your former solicitors to also (indistinct) the response to this question - - -?---Yes, we did. We did. We did, when we had the meeting with them. Because now - now I understand that these two questions are almost similar to each other. So (indistinct) - when we got the notification of the police (indistinct) that this is what it is, we (indistinct) we instruct them to correct and write to the department about the error that criminal conviction being recorded and stuff. Yes, we did.
And you say that she acted contrary to your instructions. What (indistinct) acted against (indistinct)?---Yes, because in the - in the meeting, when we had the meeting, she provided some copy of solutions that we’d need to take, but I will instruct her to let the department know that (indistinct) this, what has happened. But I was unaware that the conviction stood when - when I filling the form, yes.
[86] ibid., page 57.
[87] ibid., pages 58-59.
Re-examination
By way of re-examination, Mr Aikon Mensah’s representative asked his client whether he thought he could get a job offer in Sweden, Finland or Vietnam as a warehouse manager, to which he replied, ‘no, I don’t think so. Because of the language barrier it just – it will be very, very difficult’.[88] Mr Aikon Mensah also confirmed that his conviction for ‘rape’ was for inserting his fingers into his then wife’s vagina (being his now Ex-wife).[89]
[88] ibid., page 59.
[89] ibid.
Ms Belinda Aikon Mensah
Ms Aikon Mensah, the wife of Mr Aikon Mensah, provided a Witness Statement dated 20 December 2020 in support of her husband’s application before the Tribunal, which relevantly stated that:[90]
[90] Exhibit A2.
I am the wife of Michael Aikon Mensah and I am making this statement to support his application for a partner visa, so our family can live together again. He is at Villawood IDC and his separation from me, and our daughter is harming all of us. Michael is my best friend, he is a wonderful and supportive husband, he is kind, caring, considerate and has my best interests at heart. He is the person I trust most and the person I confide in. I can honestly say that he is the only man I have ever loved. I would describe Michael as my 'anchor'. Since the birth of our daughter [Second Child], I have suffered from anxiety and PTSD [Post-Traumatic Stress Disorder] as both of us almost died due to complications during her birth. Michael is the only person who is able to calm me and make me feel safe. Since he has been in immigration detention I have had to have someone stay with me at my home as I feel scared and alone. I have also had to start seeing a clinical psychologist for counselling and help with the high anxiety and stress I have felt not having my husband with me. My GP was very concerned about the level of anxiety and stress I was showing particularly because I am pregnant. She was quite concerned for the baby and me.
Since Michael has been in Australia he has never been in trouble in any aspect of his life.
He is well respected within the football club he has been playing and coaching for. He has instilled discipline and respect in a despondent team of young men. He encourages them to be responsible and respectful, something which most of the young men in the team were lacking. These are all characteristics that admirable and I believe show good character.
He has worked hard in his career and has advanced rapidly to be managing five staff and three stores. For the owner of a business to leave that responsibility to one person shows that he is trusted and valued as a member of his team.
I believe that Michael poses no risk to the Australia community. Everyone who has mixed with him from football friends and teammates, friends, work colleagues, and relatives would back that comment up. Michael is the sort of person who will deescalate a situation rather that aggravate or intensify a situation. One incident in particular comes to mind when we were playing a social game of summer football and another player didn't like that Mike was a good player so he kicked him in a bad tackle and called him a stupid nigger cunt. Instead of Mike getting angry, which in my opinion he had every right to, he laughed at the guy and told him to get a life, went and shook his hand and said lets keep playing. This is just one of many stories I could tell you. Michael has never been violent or abusive towards me or anyone else, he is so respected by all of our friends and family. He often gets calls from friends asking for advice on how to deal with a troublesome situation they may be in.
Although Michael has been convicted of two offences in Sweden, I firmly believe my husband is innocent. l believe due to the language barrier, his race and the fact he bad poor representation during the case, contributed to the fact that he was not found innocent. We have a good relationship with Michael's ex-wife who is the person who accused him of the two offences. We even purchased a ticket for his ex-wife to come with [First Child] (Mike's 16 year old daughter) to visit. She spent a lot of time with us as a family, shopping, having meals with us even coming in our car with us, something I know I personally would not do if I believed a man to be capable of rape or of violent behaviour. Michael freely returned to Sweden to fight the charges and to prove his innocence. When he returned he had to sell everything he had in Ghana to be able to afford to go back to Sweden, something I would not have done unless I was convinced of my innocence.
If Michael had to leave Australia not only would l feel unsafe without my husband but I believe my mental health would suffer dramatically, as I mentioned I have had to start seeing a psychologist for counselling and at this point in time I am able to talk with him and visit once a week. I cant imagine how my mental health would be if he was made to leave Australia.
If Michael had to leave Australia, mine, his [Second Child]'s and our baby that is due in March 2021 standard of living would decrease dramatically. Michael is the main source of income for our family as I only work part time, therefore I would not be able to support myself and our two children on the income I make. I would not be able to afford our mortgage payments and would have to sell our home, which would mean we would be homeless. I would struggle to pay bills and put food on the table for our children. Right now we have a comfortable life and we are able to pay our mortgage and bills and don't receive any payments or subsidies from government agencies.
I am currently 25 weeks pregnant with our second child, a boy and I am considered to be a high-risk pregnancy because of age and complications with our last baby. I will need to have a C-section with this baby as it is deemed the safest option. I will require care from my husband after the delivery of baby, as I'm sure you are aware a C section is a major surgery and recovery time is at least six weeks. When [Second Child] was born Michael was my carer, doing things from showering me to giving me daily injections to ensure I didn't get a blood clot. These are things that I only trust him to do because of the close and loving relationship we have. Even if I was to have no complications l would still want my husband to be there for the birth of our son. It is an important time in any couples relationship and it something I want to be able to share with my husband, the man I love.
Michael and [Second Child] have a very strong bond, as l mentioned when she was born there were complications with her and I. I had to have a general anaesthetic so Michael was the first one to hold her and have skin-to-skin contact with her. In her words 'daddy is my favourite'. He is very involved in her life, he dresses her every morning and does her hair, they play soccer together in the back yard and go bike riding together in the park. She is always snuggling with him on the couch in the evening and telling him about her day. Michael is her primary carer on Tuesday and many weekends (when I have to be at work, I am a healthcare worker and I am required to work some weekends). He takes her to swimming lessons every Tuesday and we all go to his soccer games every weekend.
If Michael had to leave Australia I believe it would cause emotional and psychological damage to [Second Child] and our baby that is due in March 2021. Since Michael has been in immigration detention [Second Child]'s behaviour has been quite different. She has regressed with some behaviour such as wanting a dummy and drinking from a bottle instead of a cup and not being able to sleep in her bed alone, she has been sleeping with me. Until this situation arose she hadn't used a dummy or bottle for about one year and she had been sleeping in her own bed since she was about two years old. She has become 'clingy' to me, which is a behaviour she has never displayed before.
[Second Child] has several medical issues; she has had problems with her digestive system, which has required her to be on medication for reflux and constipation. She has regular visits to the GP and to the paediatrician for ongoing support regarding these conditions. She also suffers from eczema, allergies and intolerance to dairy products and is prescribed special creams and anti-histamines.
Regarding school we have [Second Child] enrolled in [an independent] Christian School preschool from February 2021 and we want to send her to the same school when she starts kindy. If Michael had to leave Australia we could no longer afford to send her to a private school, which is $7000 a year for kindergarten and $111 per day for preschool. We want the best education possible with the Christian influence for our children, that is why we decided upon [the school].
If Michael's visa was to be refused then he would not be able to be present for the birth of our son and he would not be able to meet him for an extended period of time, I would guess at least six months as I would not be able to travel with a baby that had not been immunised as it would put the babies health at risk. Also I would probably not have the financial resources to be able to pay for two children and myself to travel to visit him. Again I would like to emphasise that I would not have the financial resources to support our family on my wage. I will be taking maternity leave from the beginning of March and l will only be paid approximately $600 per week before tax, which would not even cover the costs of basic living with an adult and two children.
I also believe that it would cause psychological and emotional distress to my children if they had to grow up without a father or spend considerable time away from him. [Second Child] is already suffering from separation anxiety, she has been afraid to sleep in her room and she has been crying a lot since Michael has been in immigration detention. I would also be concerned about the development of my children as having two parents present is the best option where possible for children. I believe it would be extremely detrimental not only to [Second Child] but to our son due in March 2021 if the decision to refuse Michael’s visa was not set aside.
It would be possible for me to get a visa for Ghana, however it would be difficult to gain employment as I don’t speak or read Twi (the local language). I have never been to Ghana or anywhere in Africa for that matter. I would be concerned about the safety of my children if we were forced to move there to be with Michael. There are issues with scammers, robberies and safety in general and I think I would be at more risk as a foreigner there; it would mean we would be secluded to our home unless Michael was with us. Michael has also not lived in Ghana for most of the past 20 years it would be very difficult for him to gain employment or start a business for our support, as he has no contacts to be able to do this. It would also be difficult if we wanted to start a business, as we don’t have the funds to be able to start something new. It is also very impossible to get business loans in Ghana without any collateral.
I would like to note that in May 2016 we were asked by the department to provide ‘more information’ including police certificates from Sweden, Finland and Vietnam for Michael. In July or August the certificates from Finland and Sweden were received in the mail, however we really struggled to obtain a police certificate from Vietnam. I even went to the Vietnamese embassy on several occasions to ask for assistance. We finally received that certificate in July 2017. On 6^th October 20l6 4.00pm at 13 London Circuit, Canberra Michael and I had an appointment with our lawyer to discuss that there was criminal convictions recorded on the police certificate from Sweden. Michael explained to her and another lawyer or legal assistant who was also in the meeting that he had received the certificate with criminal convictions and had a copy of the certificate in Swedish with him to give to her. We had used a translator application on our phone to figure out what the certificate said as neither of us read or speak Swedish. He also explained to her that he was not aware that he had the convictions. His understanding was that because he was appealing the case that there was no conviction. We asked for her advice on what we needed to do to declare and rectify the situation. She also said we needed to get the document translated from Swedish to English.
At another appointment on the 12^th October 2016 430pm at 13 London Circuit, Canberra, Michael and I asked her to declare the convictions to the department and say he didn't declare them as his understanding was that because he was appealing the case that there was no conviction. I also note that on page 72 of the ‘G’ documents the reason the lawyer provided to the department was not an accurate summary of what we had discussed in our meetings. She said the reason why incorrect information was provided was 'Oversight. I was too excited about the relationship with Belinda and at that stage we just wanted to be together and did not concentrate on the answers we submitted’ This was certainly not what was said. Michael asked her to say that he was unaware of the convictions due to the fact he was appealing the case he thought there was no conviction. Again I believe the language barrier with the lawyer in Sweden was the major contributing factor for the misunderstanding. Neither Michael or I received and email or a notification that this is what was said by the lawyer to the department. Had either of us been aware we would have asked for the response to be changed immediately to reflect what we had discussed with her in our two meetings.
I am currently 25 weeks pregnant with our second child and due to some complications; my pregnancy has been classified as high risk. I have a medical certificate from my GP if required. I had major complications when birthing our first child [Second Child], resulting in a near death experience for both of us. I required care for six weeks after the birth of her due to the fact I had to have an emergency Caesarian section. I was required to have blood thinning injections every day for six weeks post surgery, Michael was the one who had to give me these injections and was my carer during that period. Due to the high-risk pregnancy this time l am required to have a Caesarian section again and will need the same care as when [Second Child] was born. I will be required to have blood-thinning injections for six weeks to prevent a clot. Due to my age and weight l am in the high-risk category for getting blood clots in my legs or lungs post Caesarean.
[Second Child] has had several medical issues since she was born; she has intolerance to dairy products and other allergies. She also has moderate to severe eczema and digestive issues, including reflux and constipation which all require daily treatment and regular trips to the GP and paediatrician. I would be concerned if we had to move to Ghana that my children would not receive the proper healthcare that they would require or deserve, such as access to the appropriate doctors, medications required and routine immunisations. These things in Ghana are expensive and the healthcare system in Ghana works very differently to Australia. I would be worried we would not be able to afford proper health care for our children.
Michael has been an employee of Frisco Direct Pty Ltd and Homemakers Hire.com.au Pty ltd for the past five and a half years. Michael's role is as Operations Manager. He is an exceptional manager and employee. He oversees five staff. He liaises with sales managers at three stores, coordinates showroom presentation, warehouse management, stock management, deliveries installations, customer warranties, vehicle management and staff management. His boss has said he has one of the best work ethics of any employee that he has employed over the past 30 years. He is a leader. His staff work to a high standard under his instruction and supervision. His work is deeply valued within the companies. He also says he has found Michael to be an exceptional human being at both work and personaI levels and he cannot replace Michael's knowledge of product and brands, his leadership and direction for his staff and his ability to set up a showroom. The likelihood of finding a replacement of equal ability to Michael would be low.
Michael is a volunteer for Canberra Croatia Football Club. He has been a coach for the U23 and U20 team since 2018 and played for the club previous to this. He has been involved with the club for the past six years. Michael volunteers three evenings per week and one day on the weekends to assist with training and coaching the team. His time is very much appreciated by the club and they value the input he puts into the boys lives. He has instilled discipline and respect in a despondent team of young men. He encourages them to be responsible and respectful, something which most of the young men in the team were lacking. It is difficult for the club find people who are willing to volunteer this amount of time as a coach.
Michael also volunteers for the media team at our church being put on a rotational roster to operate the media system or video camera for live streaming. He spends several hours a week volunteering for this task and enjoys the social side of being involved in this team.
I am a Hospital Pharmacy Technician in Australia. The average wage for a pharmacy technician in Ghana ranges from $80-$800 per month for full time work before taxes. In Australia in my current position if I worked fulI time hours I would earn $8000 per month before taxes and super contributions. It would be difficult for me to apply for positions in Ghana as I do not speak or read Twi (the local language) and therefore it would be unlikely I would be successful at gaining employment.
Michael is a warehouse manager in Australia, The average wage for a warehouse manager in Ghana ranges from $150 - $750 per month for full time work before taxes. In Australia in his current position working full time hours he earns $8000 per month before taxes. Michael has not lived in Ghana for most of the past 20 years and would find it extremely difficult to gain employment successfully as he has no connections.
I have never been to Ghana or any African country, I can't speak from experience on this matter however I have found an article that poses an interesting view of an expatriate man living in Ghana as a Ghanaian citizen with a Ghanaian wife. Please see tells of his troubles to start a business even though he's a Ghanaian citizen, it tells how white people (as he describes people with light coloured skin) in his neighbourhood get robbed on a much higher basis than others in his community. 50% of the robberies that happened in his area happened to white people and white people only count for 0.017% of the population in Ghana. He speaks of the discrimination he faces daily, particularly with the police asking him for money or arresting him for not wearing a helmet when a black person next to him is doing the same thing. All of these things are concerning and I’m not sure l would know how to deal with living in a situation like that.
The standard of education in Ghana is nothing close to the standard we have here in Australia. The school environment is usually not conducive to learning. Classes are overcrowded, water and sanitation facilities are inadequate and trained teachers and school books are in short supply. The poor quality of education is reflected in students’ results. Children living with disabilities face even more challenges and adolescent girls are often denied the chance to complete secondary education. Although Ghana has been successful at closing the gender gap when it comes to completing school at primary education level, it is still high at secondary level. Research shows that adolescent girls are usually unable to get an education due to factors such as poverty, gender inequality and long distances from school.
We would be extremely concerned that [Second Child] and our son who is due in March, would not be given the same opportunities of education in Ghana as they would be given here in Australia, not only at a primary and secondary level but also at a tertiary level. Please see for more information regarding education.
I would like end my statement by saying the past few weeks have been the worst of my life, since Michael has been in immigration detention. [Second Child] and I love him so much and rely on him for his support and security. Our home has not felt the same without him. As a mother I see the enormous impact this is having on our daughter and every time I think about it I begin to cry. It's not only having an impact on her but also on the baby and me with the levels of anxiety and depression that I feel. I plead with you to have compassion for my family and sci aside the decision to refuse his partner visa. Please allow my husband and my children's father to come home and remain in Australia with us. [errors in original]

The Tribunal considers the interests of Mr Aikon Mensah’s four nieces and nephews together, in circumstances where there was no evidence that their interests differed from each other. However, as previously mentioned, Mr Aikon Mensah has had a relationship with his youngest nephews, aged 6, since their birth, and with the two older children since his arrival when they were approximately 5 and 2 years old. As prescribed by paragraph 11.2(4)(a) of Direction 79, less weight should generally be given where the relationship is non-parental, as it is in this case. Despite this, the Tribunal accepts the contention that it would be detrimental to these children if Mr Aikon Mensah was refused the Visa and he left Australia. That is, the Tribunal determines that refusal of the Visa is not in the best interests of the children and, having regard to their relationship with Mr Aikon Mensah, this weighs moderately in favour of granting him the Visa.
The First Child and the unborn child
For completeness, the Tribunal notes that Mr Aikon Mensah’s representative submitted that the best interests of his client’s First Child, currently living in Finland, together with those of the unborn child of Mr Aikon Mensah, should be considered under Primary Consideration 2. The Tribunal does not accept this contention. In this regard, Primary Consideration 2 is directed at the best interests of minor children in Australia, not the interests of children who may occasionally visit Australia due to having a parent residing in this country. The First Child, the 16 year old daughter of Mr Aikon Mensah, resides in Finland with her mother, being Mr Aikon Mensah’s Ex-wife. While the Tribunal notes that the First Child would have an interest in her father remaining in Australia, this is irrelevant to its consideration of the best interests of minor children in Australia under Direction 79. Accordingly, the Tribunal does not make a finding in relation to the best interests of the First Child.
Additionally, Article 1 of the United National Convention on the Rights of the Child describes a ‘child’ as ‘every human being below the age of eighteen years’; it has been held that this does not reach an unborn child.[182] Following questioning from the Tribunal, and upon further consideration of paragraph 11.2(2) of Direction 79, Mr Aikon Mensah’s representative conceded that unless the Tribunal took an expansive view of the wording in Primary Consideration 2, it could not apply to the unborn child of his client. As set out above in these reasons, that paragraph states that the consideration applies ‘only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made’. The unborn child of Mr Aikon Mensah is expected to be born in March 2021. As far as the Tribunal is aware, at the time of its decision, the child has not been born. Moreover, several decisions of the Federal Court of Australia have concluded that an unborn child is not a minor child for the purposes of the requirement in the relevant ministerial direction to consider the best interests of minor children.[183] The Tribunal follows these authorities and is therefore precluded from considering the unborn child’s interests, except by his association with his mother, Ms Aikon Mensah, under the Tribunal’s consideration of the impact on family members discussed further below in these reasons. Accordingly, the Tribunal does not make a finding in relation to the best interests of Mr Aikon Mensah’s unborn child.
[182] SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459.
[183] Kalm v Administrative Appeals Tribunal [2013] FCA 890; (2013) 215 FCR 221; and Mehta v Minister for Immigration and Border Protection [2015] FCA 1096; (2015) 238 FCR 439; SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459; and JNMK v Minister for Home Affairs [2019] FCA 1758.
Conclusion – Primary Consideration 2
For the foregoing reasons, and taking into account the list of relevant factors in paragraph 11.2 of Direction 79 that must be considered by a decision-maker in determining the best interests of the child, the Tribunal finds that Primary Consideration 2 weighs strongly against exercising the discretion to refuse Mr Aikon Mensah the Visa. That is, refusal of the Visa would not be in the best interests of minor children in Australia.
Primary Consideration 3 – Expectations of the Australian Community
Paragraph 11.3(1) of Direction 79 states that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection,[184] Justice Mortimer said of the expectations of the Australian community consideration, there under paragraph 13.3(1) of an earlier Direction made under section 499 of the Act, that:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64] - [66]).
[184] [2017] FCA 1466 at [76].
The Tribunal also notes the decision in FYBR also considering the predecessor Direction, in which Justice Charlesworth stated that the task of the decision-maker is to ‘identify what is the “government’s view” about community expectations in the particular case, to “have due regard” to that view and to “generally” afford that view more weight than other non-primary considerations’.[185] Her Honour further held that Primary Consideration 3:[186]
should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
[185] FYBR at [74].
[186] ibid., at [75].
In addition, Justice Charlesworth confirmed that:[187]
the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.
[187] ibid., at [77].
Justice Stewart in FYBR said that:[188]
community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive”.
…
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
[188] ibid., at [101]-[102].
Paragraph 11.3 makes plain that the Australian community expects that non-citizens will obey Australian laws while in Australia. Mr Aikon Mensah has done so over a period of more than 6 years, but was convicted of the Offences in Sweden in 2009. Mr Aikon Mensah was found guilty of the offences of ‘assault’ and ‘rape’ against his then wife (being his now Ex-wife) that occurred in 2005 and 2008, respectively. The offending of which Mr Aikon Mensah was convicted was serious. To reflect that gravity, Mr Aikon Mensah was sentenced to a term of imprisonment of 12 months for the Offences. The conviction and sentence were upheld by a Court of Appeal in Sweden. The Tribunal finds that Primary Consideration 3 weighs against the granting of the Visa to Mr Aikon Mensah. However, this finding is moderated by the further considerations under this primary consideration discussed immediately below in these reasons.
Following FYBR, the Tribunal has considered paragraphs 6.3(5) and 6.3(7) of Direction 79 in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal. As set out above in these reasons, paragraphs 6.3(5) and 6.3(7) of Direction 79 provide that:
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, however Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
…
(7) the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa application should be refused.
In 2014, Mr Aikon Mensah arrived in Australia aged 33. He has lived in Australia for over 6 years. While it cannot be said that Mr Aikon Mensah has been in Australia for ‘only for a short period of time’, he has not lived in the Australian community for ‘most’ of his life or ‘from a very young age’ (paragraph 6.3(5)). Nevertheless, based on the evidence provided to the Tribunal, Mr Aikon Mensah has been an active participant in the Australian community since his arrival in 2014 and has been making positive contributions through community sport and his church, together with having a strong employment record in this country. Accordingly, the Tribunal finds that its considerations pursuant to paragraph 6.3(5) of Direction 79 marginally moderates the weight to be ascribed under Primary Consideration 3 in favour of exercising the discretion to refuse the Visa.
In addition, considering the factors in paragraph 6.3(7) of Direction 79, the Tribunal finds that Mr Aikon Mensah has been making a positive contribution to the Australian community for a not insignificant period of time. Indeed, based on the evidence, the Tribunal cannot conclude other than that Mr Aikon Mensah has been making a positive contribution to the community for the whole time he has resided in Australia. Mr Aikon Mensah has a strong employment record over almost 6 years and has received support from many colleagues, family and Australian citizens for his continued stay in Australia. In this regard, Mr Aikon Mensah has actively participated in the Australian community through his years of playing and coaching soccer in Canberra and attendance at the High Street Church in Queanbeyan, including volunteering to assist with its music and audio visual requirements. Mr Aikon Mensah also currently has one minor child in Australia and is expecting another child, a son, to be born next month. This second child born of the marriage between Mr Aikon Mensah and his wife will be an Australian citizen like his sister and mother. The Tribunal also notes for completeness that Mr Aikon Mensah has extended family in Australia, including his parents-in-law, his wife’s brother and sister-in-law and nieces and nephews. The Tribunal accepts that, if the Visa was refused, the consequences for Mr Aikon Mensah’s wife and the one current minor child in Australia would be devastating. To this end, Professor Stevens opined that it would be ‘catastrophic’ for Ms Aikon Mensah in circumstances where her psychological conditions have recently been exacerbated by the detention of her husband and the impending birth of their son.[189] For these reasons, the Tribunal accepts that the weight to be afforded to Primary Consideration 3 in favour of exercising the discretion to refuse Mr Aikon Mensah the Visa is reduced. In conclusion, on balance, the Tribunal finds that Primary Consideration 3, the expectations of the Australian community, weighs moderately in favour of exercising the discretion in subsection 501(1) of the Act to refuse to grant Mr Aikon Mensah the Visa.
[189] Transcript of Proceedings, page 105.
Conclusion: Primary considerations
In concluding its analysis of the primary considerations under Part B of Direction 79, the Tribunal has found that Primary Consideration 1, the protection of the Australian community, and Primary Consideration 3, the expectations of the Australian community, respectively weigh strongly and moderately in favour of exercising the discretion under subsection 501(1) of the Act to refuse to grant Mr Aikon Mensah the Visa. However, the Tribunal has also found that Primary Consideration 2, the best interests of minor children in Australia, weighs strongly in favour of Mr Aikon Mensah and against exercising the discretion to refuse to grant him the Visa.
Other considerations
Paragraph 12(1) of Direction 79 provides that ‘other considerations’ must be taken into account where relevant and include (but are not limited to) international non-refoulement obligations; impact on family members; impact on victims; and impact on Australian business interests. The Tribunal turns to address these ‘other considerations’ contained in Direction 79 and notes that they are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin said in Suleiman v Minister for Immigration and Border Protection (Suleiman):[190]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 79] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 79] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 79] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[191]
[190] [2018] FCA 594.
[191] Ibid at [23].
Other consideration 1 – International non-refoulement obligations
Mr Aikon Mensah submitted that there were no applicable international non-refoulment obligations. Accordingly, the Tribunal gives this consideration no weight.
Other consideration 2 – Impact on family members
Paragraph 12.2(1) of Direction 79 states as follows:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely
Mr Aikon Mensah contended that this consideration weighed ‘very strongly’ against exercising the discretion to refuse the Visa, particularly because of his wife’s pregnancy and her underlying psychological condition. The Minister accepted that refusing to approve the Visa would have a negative impact on Mr Aikon Mensah’s family, such that this consideration weighed in his favour, but not strongly so. The Tribunal agrees with the parties’ submission that the impact on family members weighs in favour of Mr Aikon Mensah and against exercise of the discretion to refuse the Visa and finds that strong weight is to be attributed to this ‘other consideration’. Such a finding is due primarily to the prospective impact on Mr Aikon Mensah’s wife.
Ms Aikon Mensah
Ms Aikon Mensah is scheduled to give birth next month and has been classed as having a high-risk pregnancy. She currently requires assistance to care for the 3 year old Second Child and her psychological condition is fragile, noting again that Professor Stevens has diagnosed her with mild PTSD, moderate major depressive disorder and panic disorder. Professor Stevens opined that Ms Aikon Mensah is ‘highly dependent on her husband’, her condition has been aggravated since he was taken to Villawood and expressed ‘serious concerns’ for her if the Visa was not granted.[192] The Tribunal was told by Professor Stevens that it was ‘a no brainer’ that Ms Aikon Mensah would suffer adverse consequences if her husband was refused the Visa. In this regard, the impact on Ms Aikon Mensah would likely have subsequent consequences for both the Second Child and the unborn child of her and Mr Aikon Mensah, potentially affecting their health, upbringing and future opportunities. The Tribunal has considered the multiple written and oral statements provided by family and friends concerning the impact on Ms Aikon Mensah if her husband’s Visa is refused and he was to leave Australia; these people can already see the impact the visa refusal process is having on her and the Second Child. Relatedly, while not able to be considered a factor in the Tribunal’s deliberations under this consideration, it does note that any future adverse impact on Ms Aikon Mensah would have direct consequences for her extended family, especially her parents and brother and sister-in-law.
[192] Exhibit A15.

In addition to the emotional and physical support Mr Aikon Mensah provides his immediate family, he has also been a consistent financial provider, noting that both he and his wife have strong records of employment in Australia. If the Visa is refused, Ms Aikon Mensah would lose the financial support that her husband provides the family and this will have a direct bearing on their living situation and the children’s educational opportunities. For instance, Ms Aikon Mensah gave evidence that she would be unable to afford to continue making mortgage repayments without Mr Aikon Mensah’s remuneration in Australia, including because she will shortly be on maternity leave and paid at a part-time rate until required to return to work with or without her husband’s financial support. While Ms Aikon Mensah conceded that she would not discount having to rely on the welfare system in this country if her financial circumstances required, she was determined to avoid such an outcome, together with requiring public housing.
The Second Child
The Tribunal has considered the impact on Mr Aikon Mensah’s Second Child, being his 3 year old daughter, under Primary Consideration 2, the best interests of minor children in Australia. The Second Child is an Australian citizen living in this country and an immediate family member of Mr Aikon Mensah. Plainly, as covered in the Tribunal’s consideration of the best interests of the Second Child, the impact on the Second Child of the Visa being refused would be dramatic. Accordingly, the Tribunal finds that this weighs in favour of not exercising the discretion to refuse the Visa to Mr Aikon Mensah.
Relocation to Ghana
While the Tribunal accepts the Minister’s submission that Mr Aikon Mensah’s immediate family could relocate to Ghana if the Visa were refused and he was required to leave Australia, it finds that such an outcome is less than desirable for those family members for a number of reasons outlined in evidence provided to the Tribunal, such as the disparity in educational opportunities (especially for the Second Child), employment prospects, living conditions and access to necessary health services. On the latter point, the expert evidence of Professor Stevens was that Ms Aikon Mensah would face a ‘difficult’ situation in Ghana given her current psychological condition. For these reasons, the Tribunal finds that this weighs against refusing the Visa.
The First Child and unborn child
Under the Tribunal’s consideration of Primary Consideration 2, it noted that the interests of the 16 year old First Child, residing in Finland with Mr Aikon Mensah’s Ex-wife, and the interests of the unborn child, were unable to be considered by the Tribunal pursuant to the terms of Direction 79. Similarly, the impact on the First Child and the unborn child are unable to be taken into account under this particular ‘other consideration’. In accordance with paragraph 12.2(1) of Direction 79, the impact of visa refusal must be considered on ‘immediate family members in Australia’, where they are an Australian citizen, permanent resident or someone with a right to remain in Australia indefinitely. Neither the First Child nor the unborn child currently meet any of these criteria. The First Child is not in Australia. The unborn child is not considered to be a minor child for the purposes of the requirement under the ministerial direction to consider the best interests of minor children and the Tribunal is accordingly satisfied that, consistent with the line of authorities earlier discussed in these reasons, an unborn child is not yet an Australian citizen, permanent resident or someone with a right to remain indefinitely in this country and thus unable to yet be considered an ‘immediate family member’ of Mr Aikon Mensah, as required under paragraph 12.2 of Direction 79. Clearly, this situation will change in the near future when the son of Mr Aikon Mensah is born. Presently, however, the Tribunal cannot consider the impact of visa refusal on the unborn child, while again noting that the impact on Ms Aikon Mensah would have a direct bearing on their son. The Tribunal does however further below in these reasons consider the impact on the First Child as a non-listed ‘other’ consideration in circumstances where the ‘other considerations’ in Direction 79 are not limited to those listed in that document and set out above in these reasons.
In conclusion, for all of the above relevant reasons, the Tribunal finds that this consideration weighs strongly in favour of Mr Aikon Mensah and against exercising the discretion to refuse him the Visa.
Other consideration 3 – Impact on victims
Paragraph 12.3(1) of the Direction requires that:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
There was no evidence before the Tribunal about the impact on the victim of Mr Aikon Mensah’s offending, or her family members, of a decision to grant him the Visa. Moreover, the victim does not reside in Australia. In the absence of any evidence in relation to this consideration, the Tribunal finds that this factor weighs neither for nor against Mr Aikon Mensah. That is, this consideration is given no weight.
Other consideration 4 – Impact on Australian business interests
Paragraph 12.4(1) of the Direction provides:
Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.
There was no evidence before the Tribunal that Mr Aikon Mensah is involved in the delivery of a major project or an important service in Australia. Accordingly, this consideration is neutral.
Other (non-listed) consideration – Impact on the First Child
The Tribunal is satisfied that if the Visa were refused, it would detrimentally impact the First Child, although the weight to be given to this consideration is moderate. The Tribunal accepts that Mr Aikon Mensah and the First Child have a close relationship. The First Child is 16 and lives with her mother, Mr Aikon Mensah’s Ex-wife, in Finland. The First Child communicates with her father by electronic means, but has visited Australia 3 times and has formed a close relationship with her half-sister, the Second Child, the nieces and nephews of her father in Australia and Ms Aikon Mensah’s parents. Mr Aikon Mensah also provides financial support to the First Child and appears to have a strong involvement as a parent in her upbringing, despite not living in the same country.
The Tribunal accepts that refusal of the Visa would impact the First Child due to her father likely not being in a position to provide her with the degree of financial support he currently does from Australia for reasons previously outlined. However, they would be able to continue their relationship through electronic communication, which is their current form of correspondence, although noting Mr Aikon Mensah’s evidence regarding connectivity problems in Ghana. Additionally, the First Child may not be in a position to visit Australia and see her extended family if her father is not in this country and those relationships may suffer. The Tribunal also accepts that it may be more difficult for the First Child to visit her father in Ghana, including due to financial and safety reasons and that the closeness of their relationship may accordingly deteriorate. For these reasons, this ‘other’ non-listed consideration weighs moderately in favour of Mr Aikon Mensah and against exercising the discretion to refuse the Visa.
Conclusion: Other considerations
The Tribunal is satisfied, based on its careful assessment of all considerations in Direction 79 pursuant to the evidence, that the one relevant listed ‘other’ consideration, together with Primary Consideration 2, outweighs the remaining primary considerations, being Primary Consideration 1, the protection of the Australian community, and Primary Consideration 3, the expectations of the Australian community. That is, the Tribunal has found that Primary Consideration 2, the best interests of minor children in Australia, and the other consideration of the ‘impact on family members’ both weigh strongly against exercising the discretion to refuse the Visa, and slightly outweigh Primary Consideration 1 and Primary Consideration 3, respectively weighing strongly and moderately in favour of exercising the discretion to refuse to grant Mr Aikon Mensah the Visa. The Tribunal has therefore found, pursuant to Suleiman,[193] that the other consideration of the ‘impact on family members’ should be treated as a primary consideration and carry the equivalent weight given the Tribunal’s assessment that the particular circumstances of the case detailed in these reasons place it outside the circumstances that generally apply.
[193] At [23].
CONCLUSION
There was no dispute that Mr Aikon Mensah does not pass the ‘character test’ as defined in subsection 501(6) of the Act because he has a ‘substantial criminal record’. This failure emanates from the 12 month term of imprisonment Mr Aikon Mensah received in 2009 for the Offences of ‘assault’ and ‘rape’ in Sweden. Accordingly, pursuant to subsection 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. As a result of his failure to pass the character test, Mr Aikon Mensah was refused the Visa by a delegate of the Minister in October last year. Mr Aikon Mensah applied to the Tribunal for review of that decision. The critical issue for determination by the Tribunal was whether it should exercise the discretion under subsection 501(1) of the Act to refuse to grant Mr Aikon Mensah the Visa. This required a consideration of Part B of Direction 79.
It follows from the preceding paragraphs that Primary Consideration 1 and Primary Consideration 3 in Part B of Direction 79 respectively weigh strongly and moderately in favour of exercising the discretion under subsection 501(1) of the Act to refuse to grant Mr Aikon Mensah the Visa. Conversely, the Tribunal has found that Primary Consideration 2, regarding the best interests of minor children in Australia, weighs strongly in Mr Aikon Mensah’s favour primarily in circumstances where he has one daughter in Australia, aged 3, to whom he is very close. Additionally, while the Tribunal notes that, pursuant to sub-paragraph 8(4) of Direction 79, primary considerations should generally be given greater weight than other considerations, it has found that one of the four listed ‘other considerations’, being the ‘impact on family members’, weighs strongly in favour of Mr Aikon Mensah and against the exercise of the discretion to refuse him the Visa.
In totality, and with some reluctance given the nature and seriousness of Mr Aikon Mensah’s Swedish convictions, the Tribunal has concluded that Primary Consideration 2 and the one ‘other’ consideration slightly outweighs the two primary considerations weighing in favour of exercising the discretion to refuse to grant Mr Aikon Mensah the Visa. That is, the weight afforded by the Tribunal to the best interests of minor children in Australia and the impact on family members in this country tips the balance in Mr Aikon Mensah’s favour and against exercising the discretion to refuse him the Visa. In this regard, the Tribunal is satisfied that the circumstances of this case are unique for a visa applicant. Mr Aikon Mensah came to Australia in 2014, applied for the Visa and married his now wife, an Australian born citizen. The couple currently have one minor child, with another expected imminently. For 6 years, Mr Aikon Mensah has been an active participant in the Australian community, through his stable employment, family life, soccer and church. Aside from the Offences committed in Sweden in 2005 and 2008, Mr Aikon Mensah has no other criminal history, including having not offended in Australia during his more than 6 years in this country nor in the two other countries in which he has resided since leaving Ghana aged 20 in 2001.
Decisions of this nature are never easy and disagreement is understandable. A consideration of the specific circumstances of each case should be undertaken before judgment is passed on a particular decision. To that end, while this Tribunal is deeply cognisant of the gravity of the convictions against Mr Aikon Mensah, it is only after much deliberation and consideration that the Tribunal has concluded through its findings that, on balance, a decision which likely led to Mr Aikon Mensah leaving Australia would do more harm than that which may occur if he were to remain in this country. Plainly, based on all the evidence, the love of Mr Aikon Mensah’s wife and the support she requires from him, together with the interests of their daughter, are pivotal factors in this decision not to exercise the discretion to refuse him the Visa. In accordance with the Tribunal’s recent comments in Anae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 6, Mr Aikon Mensah ‘should bear in mind for the future the catastrophic consequences for his family which could have resulted from his offending conduct and which would almost certainly flow from any future offending’.[194] To that end, the Tribunal trusts that the visa refusal process experienced by Mr Aikon Mensah will act as an ongoing deterrent against any offending in Australia, that he understands the granting of the Visa is a privilege not afforded lightly in these circumstances and that he will continue his strong contribution to the community, including his significant role as a parent to two Australian children, together with his wife, and as her husband.
[194] At [110].
DECISION
The correct or preferable decision is that the reviewable decision made on 21 October 2020 by a delegate of the Minister is set aside and substituted so that the Tribunal declines to exercise the discretion to refuse to grant Mr Michael Aikon Mensah a Partner (Temporary) (Class UK) visa pursuant to subsection 501(1) of the Act.

I certify that the preceding 206 (two-hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................................................................
Associate
Dated: 9 February 2021

Date(s) of hearing: 20 and 21 January 2021

Representative for Mr Aikon Mensah:
Mr Nigel Dobbie, Visa Immigration Specialists Australia Pty Ltd

Solicitor for the Minister: Mr Alexander Zhang, Clayton Utz

Date(s) of hearing:	20 and 21 January 2021
Representative for Mr Aikon Mensah:	Mr Nigel Dobbie, Visa Immigration Specialists Australia Pty Ltd
Solicitor for the Minister:	Mr Alexander Zhang, Clayton Utz