Akosah (Migration)

[2022] AATA 4848

Akosah (Migration) [2022] AATA 4848 (29 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jones Kwabena Akosah

CASE NUMBER:  2210386

HOME AFFAIRS REFERENCE(S):          BCC2020/2032879

MEMBER:Kira Raif

DATE:29 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 29 November 2022 at 1:03pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa –incorrect answers were given or provided – applicant has been known by a different name – deliberately withheld information about his true identity – Australian citizen children – it is in the best interests of this child that the applicant is able to remain in Australia – significant hardship would be caused to the applicant’s family –decision under review set aside  

LEGISLATION
Migration Act 1958, ss 101, 107, 109

CASES

MIAC v Khadgi (2010) 190 FCR 248

statement of decision and reasons

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a national of Ghana, born in September 1970. He was granted the Class BS Partner visa in April 2014. In March 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 15 July 2022. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 29 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 101 of the Act.

8. The applicant provided to the Tribunal  a copy of the primary decision record. It indicates that he made the application for the Partner visa on 23 December 2011. The applicant gave the following answers on the application form:

   a.In response to Question 9, ‘have you or any dependant family members previously been to Australia’ the applicant stated ‘no’,

   b.In response to question 10, the applicant gave his name as Jones Kwabena Akosah,

   c.In response to Question 14 ‘other names you have been known by’, the applicant did not provide an answer

   d.The applicant gave his date of birth as 15 September 1970 and his country of citizenship as Ghana in response to Questions 15 and 20;

   e.In response to Question 38 asking him to provide details of his children, the applicant referred to his son Dylan (b. May 2005) and two daughters Christiana and Kristina (b. June 1997).

9. The applicant was granted the provisional Partner visa in February 2012 and the permanent visa in April 2014.

10. The primary decision record indicates that in March 2021 a departmental Forensic Facial Image Examiner undertook a facial comparison check between the facial image of the applicant provided with the Partner visa application and of the facial image of another person named Gray Demango (born in June 1962). The Facial Image Examiner formed the opinion that the images represented the same individual.

11. The primary decision record indicates that Gray Demango arrived in Australia in August 2001 using a New Zealand travel document and holding the Special Category visa and he departed Australia in July 2010. Gray Demango was listed as the father of Michael (born in February 1990) in an application for the Subclass 461 visa lodged in June 2011. That application also included a New Zealand passport and New Zealand citizenship certificate in the name of Gray Demango. Michael was granted the New Zealand family relationship visa in March 2012.

12. The applicant made an application for Australian citizenship in July 2017. In April 2022 the applicant was issued with an invitation to comment on adverse information, including information regarding his identity. In response, the applicant confirmed in his statutory declaration that he was also known as Gray Demango and that he concealed information about his alias in all his Australian visa applications. The applicant confirmed that as Gray Demango he travelled from South Africa to New Zealand in 1995 using an identity of a Liberian refugee he knew in Ghana and he was granted the permanent New Zealand visa. He arrived in Australia in August 2001 as a holder of the Special Category visa. The applicant confirmed that he had an undeclared son Michael Akosah. He stated that he ‘could no longer hide’ his real identity and applied for the Partner visa using his true identity.

13. In oral evidence to the Tribunal the applicant concedes that he did not comply with s. 101 of the Act. The applicant states that he did not comply because he was scared due to the war in Africa and also because he was concerned about not getting the Australian visa.

14. Having regard to the applicant’s own evidence and the information in the primary decision record concerning facial image comparison, the Tribunal finds that  the applicant was also known as Gray Demango and had travelled to Australia using that identity. The Tribunal finds that when applying for the Partner visa, the applicant completed the application form in a way that incorrect answers were given or provided when he stated on the application form that

    -neither he nor other family members had previously held Australian visas. The Tribunal finds that the applicant had previously held an Australian Special Category visa.

    -that he was a citizen of Ghana (and not New Zealand),

    -by referring to only three of his children and failing to declare Michael.

15. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. For these reasons, the Tribunal finds that there was non-compliance with s. 101 of the Act  by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

16. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

17. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:

    The correct information

18. The correct information is that the applicant has been known by a different name, had previously held an Australian visa, had another child who was not declared in his Partner visa application, and was a holder of New Zealand citizenship obtained in a different name.

    The content of the genuine document (if any)

19. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

20. The applicant’s identity, including name and country of nationality, and the previous visas or visits to Australia, are relevant to the assessment of a person’s character and the special return criteria. The presence of another child would have also been relevant in assessing the health criteria and if the child was assessed as being a member of the applicant’s family unit, he have been required to meet the health requirements and undertake the health checks.

21. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

22. The applicant states that after living in Australia for ten years, he could no longer perpetuate the lies and decided to abandon his false identity of Gray Demango. He left Australia, obtained documents in his genuine name of Jones Kwabena Akosah and made the application for the Australian visa in his correct name. Ms Akosah gave similar evidence to the Tribunal, stating they did not want to lie to their children and did not want the children to see the false documents, so they decided that the applicant should return to Ghana and make the application in his true identity.

23. The Tribunal does not accept that the applicant was trying to do ‘the right thing’ by applying for the Australian visa in his correct name and providing incorrect answers in that application. While he did apply for the visa in what he claims to be his true name, he deliberately provided incorrect answers in his visa applications, including the application for the Prospective Marriage visa and the Spouse visas, and later in his citizenship application. In the Tribunal’s view, the consistent provision of incorrect answers in his dealings with Immigration over a lengthy period does not suggest to the Tribunal that the applicant was trying to “do the right thing” or that he was remorseful for his actions.

24. The applicant also told the Tribunal that he provided false information in his visa application in order to have a better life in Australia. It is not clear to the Tribunal why the applicant’s desire to have a better life in Australia justified the breach of the Australian laws. The applicant also states that he did not know ‘it would come to this’ but the Tribunal does not consider that the applicant’s failure to appreciate the consequences of the breach justify the breach itself.

25. The Tribunal acknowledges that the applicant had completed Form 1023 (notification of incorrect answers) but he had only done so in response to the NOICC.

26. In oral evidence to the Tribunal the applicant also stated that he did not declare his true identity because he was scared of the war in Africa. The Tribunal does not accept that evidence because at the time the applicant held the New Zealand citizenship (however obtained) which had not been cancelled or revoked and he would not have been returned to Africa. The applicant also told the Tribunal that he was scared that he would not be allowed to return to Australia or that his visa may be cancelled and he needed to be in Australia with his wife and children. That indicates that the applicant had deliberately provided false information in his Partner visa application in order to obtain, or retain, his Australian visa and residence.

27. The applicant also told the Tribunal that he did not declare his son Michael because he did not want his son’s visa to be cancelled because his personal information was not consistent with Michael’s. Again, the Tribunal finds that the applicant chose to do what he believed best suited his circumstances, rather than what the law required him to do.  

28. The Tribunal has formed the view that the applicant had deliberately provided incorrect answers and that he had deliberately withheld information about his true identity and previous visit to Australia. That is, the breach was done knowingly and intentionally.

    The present circumstances of the visa holder

29. The applicant has been living in Australia with his partner and children since 2001. The applicant claims to be the main income earner for the family and to be responsible for the family’s expenses. He told the Tribunal he works as a forklift operator and his wife works as a nurse on a full-time basis and they support family overseas. The Tribunal is prepared to accept that evidence. The applicant told the Tribunal that his wife broke her leg four months earlier and has not worked (he provided medical evidence to the Tribunal) and in that time he has been the breadwinner for the family and has provided physical support to his wife. The Tribunal accepts that evidence.

30. The applicant told the Tribunal that he asked Michael to return to Ghana due to his visa issues as Michael’s Student visa was cancelled. He states that Christine and Kristiana are his brother’s children and he raised them from the time their father died when they were 6 months old and they consider him to be their biological father. They had never travelled to Australia. The applicant has two other children in Australia who are Australian citizens, Elizabeth (who is 20) and Dylan (who is 17 years of age). The Tribunal accepts that evidence.

31. The applicant refers to his poor health and he provided in his submission to the delegate a number of medical records. He told the Tribunal that there is no proper medical care in Ghana and that the medication there is ‘fake’. Whether or not that is the case, the Tribunal is mindful that the applicant retains his New Zealand citizenship (even if it may have been issued under a false name, there is no evidence of it being cancelled or revoked). That means that if the applicant’s visa is cancelled, he can remain in New Zealand rather than Ghana. The Tribunal acknowledges the applicant’s evidence that  he does not want to use the false name and the false documents but the Tribunal is mindful that legally, he can return to New Zealand unless and until his New Zealand citizenship is revoked.

32. The applicant refers to his wife’s health issues and he states that he is looking after his wife. The Tribunal is prepared to accept that evidence.

33. The applicant told the Tribunal that he has a small mineral water business in Ghana and its running depends on him having funds.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

34. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

35. There are no known instances of non-compliance.

    The time that has elapsed since the non-compliance

36. The application for the Partner visa was made in December 2011. Nearly 11 years passed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

37. The applicant refers to driving offences. He told the Tribunal he has two convictions for drink driving, 5 years and 6 months ago, and as a result his license was suspended and he was fined. He explained that he was under stress due to the visa issues and started drinking.

    Any contribution made by the holder to the community.

38. The applicant refers to the contribution he makes to the community in Ghana, providing financial support to his extended family and financial and other support to others. He refers to sending clothes and shoes to charities in Ghana. The applicant also told the Tribunal that he attends church and helps those in need. There are some statements from third parties and the Tribunal accepts that evidence.

39. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140.

40. If the applicant’s son Michael holds an Australian visa, it may be subject to consequential cancellation. The applicant’s evidence to the Tribunal is that his son’s Student visa was cancelled and Michael had returned to Ghana and the applicant told the Tribunal that Michael no longer holds an Australian visa. In these circumstances, the Tribunal finds that there are no persons whose visa may be subject to consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

41. The applicant’s son Dylan is an Australian citizen and is presently 17 years of age. (The other children are over the age of 18). The applicant refers to the close relationship he has with his son, and the support he provides to the child. He refers to the parental control and states that his son is more likely to listen to him than his mother. The Tribunal is prepared to accept that it is in the best interests of the child to remain with both of his parents and the Tribunal also accepts that the applicant provides not only parental control but also financial support to the child. The Tribunal accepts that it is in the best interests of this child that the applicant is able to remain in Australia.

42. The applicant refers to his other children over the 18. The applicant states that in Australia children over 18 are independent but in his country, any unmarried child is still under control and support of their parent. The Tribunal accepts that the applicant supports all of his children but given that these children are over the age of 18, the Tribunal is not able to consider their best interests in this consideration.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

43. The applicant told the Tribunal that he does not want to return to Ghana because his family are in Australia and also because there is no proper health system in Ghana. The applicant states that if he is to leave Australia, he cannot support people in Ghana and cannot get any help from them. With respect to New Zealand, the applicant states that the authorities there may investigate his identity. The Tribunal accepts that evidence but has formed the view that these do not raise any non-refoulement obligations. 

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

44. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will become an unlawful non-citizen and will be subject to detention and removal from Australia. The applicant may seek other Australian visas onshore without Ministerial intervention but will have very limited opportunities due to the restrictions imposed by s. 48. He will be able to apply for the Australian visas in the future offshore but may be subject to an exclusion period. If the applicant is not a holder of an Australian visa, he may not be eligible to gain the Australian citizenship.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

1. The applicant outlined the hardship that would be caused to him and his family if his visa is cancelled in his submissions to the delegate and the Tribunal. Many of his claims are addressed above.

2. The applicant refers to a close relationship with his partner and children and states that they would be affected if he was to leave Australia. The applicant refers to his wife’s health and states that he needs to remain in Australia to look after her and also provide financial support to his family in Australia and overseas. The applicant refers to having a close relationship with his son Dylan, who is completing high school, and states that if he was to leave, his son’s well-being and schooling would be affected.

3. The applicant refers to his own health issues, as well as his wife’s. In  his submission to the delegate the applicant states that his wife requires an operation and he would act as a caregiver for her. The applicant had presented a number of medical records relating to his wife. He states that if he is to live in Ghana, he would not be able to access adequate healthcare, given his particular needs. He states that he has nowhere to live in Ghana. The Tribunal is prepared to accept that evidence.

4. The applicant refers to the financial support he provides to his extended family in Ghana and also to the orphanages and others in need. He provided statements from others supporting that evidence. The applicant states that such support would not be available if he cannot work in Australia. The Tribunal accepts that evidence.

5. The applicant told the Tribunal that he took a loan to provide cars to his children and they need to repay the loan. The Tribunal accepts that financial hardship may be caused to the family if the cancellation of the applicant’s visa is to result in his departure from Australia.

6. The applicant’s evidence to the Tribunal is that he is the one who can control his children (and his daughter does not listen to her mother). The Tribunal accepts that the applicant provides support and supervision to his children and supports his wife in taking care of the children.

7. The applicant also told the Tribunal that the New Zealand authorities many questions and he does not want to go through this. The Tribunal accepts that.

8. Ms Akosah told the Tribunal that she needs her husband and the children need their father. She refers to her dependence on the applicant (she broke her leg four months ago) and to the applicant being responsible for paying the bills for the family. Ms Akosah refers to her and her children’s reliance on the applicant and the fact that  they would not be able to freely visit him in Ghana. As noted elsewhere, the Tribunal accepts that evidence.

9. The Tribunal generally accepts the applicant’s evidence and accepts that significant hardship would be caused to the applicant and others if the applicant was to leave Australia as a result of his visa being cancelled.

10. The applicant refers to the hardship he would experience if he was to return to Ghana. However, in the circumstances of this case, the Tribunal is not satisfied that the cancellation of the applicant’s visa would necessarily result in the applicant having to return to Ghana. This is because the applicant is a holder of a New Zealand passport and is a national of New Zealand, albeit under a different identity. There is nothing before the Tribunal to indicate that the New Zealand authorities have taken any steps to annul the applicant’s New Zealand citizenship and that he is no longer a holder of that citizenship. The applicant suggested that his New Zealand citizenship may have been cancelled by now but he presented no evidence to support that  claim and he concedes that he does not know as he has not lived in New Zealand for a long time. In the absence of any evidence of the cancellation, the Tribunal does not accept that the applicant’s New Zealand citizenship has been cancelled or revoked. The fact that the applicant is a New Zealand national would entitle him to live in New Zealand. However, the Tribunal acknowledges that if the applicant is to obtain a Special Category visa, that visa may be subject to cancellation under s. 116 due to the uncertainty about the applicant’s identity. That is, while there is a possibility that the applicant may be able to remain in Australia as a New Zealand citizen even if his Partner visa is cancelled, it cannot be assumed that the applicant will be able to do so. That is, it cannot be assumed that the applicant will retain, or will be able to obtain, another Australian visa on the basis of his false New Zealand identity and citizenship.

11. The applicant and his partner told the Tribunal that if he is to return to Ghana, travel is very expensive and his wife and children may not be able to afford travel. The Tribunal accepts that the travel may be expensive and that  if the applicant is to live in Ghana, that is likely to significantly limit his physical interactions with his wife and Australian children.

12. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant did not comply with s. 101 and that there are grounds for cancelling the visa.

13. The Tribunal has formed the view that there are strong reasons why the visa should be cancelled. Most significantly, the Tribunal places weight on the circumstances in which the non-compliance occurred. The applicant had deliberately provided false information and incorrect answers in the application form because he believed it would give him better chances of obtaining the Australian visa. Both the applicant and his partner told the Tribunal that he wanted to be honest and returned to Ghana to reapply for the visa so as to rely on his true identity, but it is not in dispute that despite relying on his true identity, the applicant did fail to mention his earlier identity, his previous visit to Australia and his son Michael when applying for the Prospective Marriage visa and the Partner visa. The applicant had been deliberately untruthful in his multiple dealings with the Department and in the Tribunal’s view, that weighs heavily in favour of the cancellation.

14. Other circumstances weigh against the cancellation. In this case, the Tribunal places significant weight on the reliance the applicant’s family in Australia and Ghana place on him. In particular, the Tribunal accepts that the applicant provides financial support to his family in Australia (particularly since his wife has not been able to work due to injury) and Ghana (he supports three children and other members of his extended family) and the Tribunal also accepts that the applicant provides physical support to his wife and two children in Australia and parental guidance to the children. That will not be available if the applicant was to leave Australia as a result of his visa being cancelled and that weighs heavily against the cancellation. The Tribunal places great weight on the fact that  significant hardship would be caused to the applicant’s family if his visa is cancelled.

15. The Tribunal has also formed the view that the best interests of the applicant’s minor child is to remain in the presence of both of his parents. There is at least a possibility that  if the applicant’s Partner visa is cancelled, he may be unable to obtain or retain another Australian visa and that he may have to depart Australia. That is, the cancellation of the visa may lead to his separation of the applicant from his minor child in Australia and that  is not in the child’s best interests.

16. There are other factors that weigh against the cancellation. The Tribunal accepts that the applicant contributes to Australia through his employment and charitable work. The Tribunal acknowledges that significant time has passed since the non-compliance and that during the applicant’s lengthy stay in Australia he has formed strong family, employment, financial and other ties to this country.

17. In all the circumstances of this case, the Tribunal has decided to place greatest weight on the best interests of the applicant’s Australian child and the hardship that would be caused to the family if his visa is cancelled. These factors weigh against the cancellation.

18. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    decision

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member