Asare Appiah Johnson and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

Asare Appiah Johnson and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 251 (23 February 2023)
Division:GENERAL DIVISION
File Number: 2022/0657
Re:Natalie Ann Asare Appiah Johnson
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member D. Cosgrave
Date:23 February 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
………[SGD]…..……
Member D. Cosgrave

Catchwords
MIGRATION – Refusal to grant visa – citizen of Ghana – failure to pass good character test – past and present conduct – whether the discretion to set aside the visa refusal decision should be exercised – Ministerial Direction No. 90 applied – delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Irving v Minister for Immigration, Local Government& Ethnic Affairs (1996) 68 FCR 422
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (15 April 2021)
REASONS FOR DECISION
Member D. Cosgrave
23 February 2023
INTRODUCTION

The Applicant seeks a review, under Section 500 of the Migration Act 1958 (the Act), of the Respondent’s 30 December 2021 decision to refuse to grant a Partner (Temporary) (Class UF) visa and Partner (Residence) (Class BC) visa (the visa) to her husband (the Visa Applicant) by applying s 501(1) of the Act on character grounds.
The Applicant was the sponsor in the relevant partner visa application. The Visa Applicant is currently offshore.
The hearing was held by video at the Tribunal’s Brisbane Registry on 18, 19 and 25 January 2023 and 3 February 2023. The Applicant was represented by Mr Northam, a legal practitioner with Northam Lawyers. The Respondent was represented by Ms Prasad, a legal practitioner with Minter Ellison Lawyers.
Unless the context indicates otherwise, passages quoted in bold font and underlined have been emphasised by the Tribunal.
FACTS
Background of the Visa Applicant’s Conduct
The background of the Visa Applicant’s conduct is set out in:
(a)Australian National Criminal History Check (dated 27 September 2019);[1]
(b)Ghanian Criminal Check (dated 25 May 2021 and valid to 25 November 2021);[2]
(c)Application for a Protection (Class XA) visa (signed 11 February 2010);[3]
(d)Statement in Support of Protection Visa Application (declared 11 February 2010);[4]
(e)Relationship Statement by the Visa Applicant (dated 26 February 2018);[5]
(f)Department of Home Affairs undated file note.[6]
[1] G Documents (G1-G54), G6.
[2] G5, page 28.
[3] G9, pages 58-73.
[4] G10, pages 74-77.
[5] G12, pages 82-95.
[6] G 13, pages 96-97.
The Visa Applicant is a 43-year-old citizen of Ghana born on 19 March 1979. He first arrived in Australia on 31 January 2010 on a South African passport in the name Kojo Tskikata (DOB: 3 September 1979).[7]
[7] Ibid.
The Visa Applicant alleges that he destroyed the South African passport by tearing it up and flushing it down the aircraft’s toilet en-route from Hong Kong to New Zealand via Melbourne.
When he arrived in Melbourne, the Visa Applicant advised immigration officials that he wanted to seek protection in Australia.[8] He was taken into immigration detention.
[8] G13, page 96.
On 15 February 2010, the Visa Applicant applied for a protection visa.[9] In that application, the Visa Applicant claimed to fear persecution on the basis that he identified as a homosexual.[10]
[9] G9, Op cit.
[10] G10, Op cit.
On 23 August 2010, a delegate of the Minister refused the Visa Applicant’s application for a protection visa.[11]
[11] Op cit.
On 26 August 2010 the Visa Applicant sought review of the protection visa refusal decision at the Refugee Review Tribunal.[12]
[12] Op cit.
On 15 December 2010, the Refugee Review Tribunal affirmed the delegate's 23 August 2010 decision to refuse a protection visa.[13]
[13] Op cit.
On 21 December 2010, the Visa Applicant sought judicial review of the Refugee Review Tribunal's decision.[14]
[14] Op cit.
On 30 January 2011, the Visa Applicant absconded from Maribyrnong Immigration Detention Centre while on an excursion.[15]
[15] Op cit.
The Visa Applicant’s application for judicial review of the Refugee Review Tribunal's decision was discontinued on 1 March 2011.[16]
[16] Op cit.
On 11 September 2013 the Visa Applicant and the Applicant met.[17]
[17] G8, page 45.
On 7 June 2014 the Visa Applicant and the Applicant were married.[18]
[18] Op cit.
On 17 July 2014, the Visa Applicant was located, subsequently detained and then transferred to Villawood Immigration Detention Facility.[19]
[19] G11.
On 1 August 2014, the Visa Applicant applied for a partner visa, sponsored by the Applicant.[20]
[20] G13.
On 27 August 2014, a delegate of the Minister refused this application for a partner visa.[21]
[21] G13.
That decision was affirmed by the Migration Review Tribunal on 17 October 2014.[22]
[22] G16, page 107 while G13 says 20 October 2014.
On 12 December 2014, the Visa Applicant voluntarily departed Australia.[23]
[23] G13 and S1, page 6.
On 2 March 2018, the Visa Applicant applied for a partner visa, sponsored by the Applicant.
On 23 July 2021, the Visa Applicant was given a 'notice of intention to consider refusal of your visa application' under subsection 501(1) of the Act on the basis that he did not satisfy the character test.[24] The Visa Applicant provided a detailed submission in response on 15 September 2021.[25]
[24] G14, page 98.
[25] G49, page 191.
On 30 December 2021, a delegate of the Minister refused to grant the Visa Applicant the partner visa on character grounds, applying Section 501(6)(c)(ii) of the Act.[26] The Visa Applicant was notified of that decision by letter dated ‘7 January 2021’, which the Tribunal has taken to mean 7 January 2022.[27]
[26] G4, page 14 and G5, page 17.
[27] G3, page 9.
On 28 January 2022, the Applicant (on behalf of the Visa Applicant) applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision.[28]
[28] G2, page 3.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and section 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3) of the Act, read in conjunction with sections 501(6) and 501(7), oblige the Minister to cancel or refuse a person’s visa if the Minister is satisfied the person does not pass the character test.
The ‘character test’ is defined in section 501(6) of the Act:
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)); or
(aa) the person has been convicted of an offence that was committed:
(i)     while the person was in immigration detention; or
(ii)     during an escape by the person from immigration detention; or
(iii)   after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b)the Minister reasonably suspects:
(i)     that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii)    that the group, organisation or person has been or is involved in criminal conduct; or
(ba) the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i)     an offence under one or more of sections 233A to 234A (people smuggling);
(ii)     an offence of trafficking in persons;
(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
(c)having regard to either or both of the following:
(i)     the person’s past and present criminal conduct;
(ii)     the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia; or
(ii)     harass, molest, intimidate or stalk another person in Australia; or
(iii)    vilify a segment of the Australian community; or
(iv)    incite discord in the Australian community or in a segment of that community; or represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
(e)a court in Australia or a foreign country has:
(i)     convicted the person of one or more sexually based offences involving a child; or
(ii)     found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i)     the crime of genocide;
(ii)     a crime against humanity;
(iii)    a war crime;
(iv)    a crime involving torture or slavery;
(v)    a crime that is otherwise of serious international concern; or
(g)the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h)an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.
(Emphasis added.)
THE ISSUES
The Tribunal has the following issues to consider in this matter:
(a)whether the Visa Applicant passes the character test as defined in s 501(6) of the Act; and
(b)if the Visa Applicant does not pass the character test, then whether the discretion in s 501(1) of the Act should be exercised.
THE EVIDENCE
The following is a summary of the evidence before the Tribunal in this matter.
The evidence referred to below comprises documentary evidence collated for the purposes of s 501G of the Act and tendered into evidence, documents tendered by the Applicant[29] and Respondent, evidence in additional written statements if provided and submitted to the Tribunal and evidence given by the witnesses at the hearing in response to questions in examination-in-chief, re-examination, under cross-examination and from the Tribunal.
[29] IIRC, Mr Northam tendered written evidence on either 25 January or 3 February.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’.
The following documents were tendered into evidence:
(a)Exhibit 1, G Documents;
(b)Exhibit 2, Supplementary G Documents;
(c)Exhibit 2.1, Further Supplementary G Documents;
(d)Exhibit 3, Further Supplementary G Documents;
(e)Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC);
(f)Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC);
(g)Exhibit 6, Report of Dr J Yoxall, a forensic psychologist ;
(h)Exhibit 7, Applicant’s ID Documentation ;
(i)Exhibit 8, Mrs Asare’s email to Self with Partner Visa Handbook ;
(j)Exhibit 9, Letter from the Ghanian High Commissioner regarding the Visa Applicant’s passport application;
(k)Exhibit 10, Mrs Asare – Note - Call to MAS Migration Agency; and
(l)Exhibit 11, Foster Kofi Asare Appiah’s Birth Certificate.
The Tribunal will now consider the significant documentary evidence.
Dr Jacqueline Yoxall’s Report dated 19 April 2022
Dr Yoxall assessed the Visa Applicant by videoconference on 25 March 2022 and the Applicant by telephone on 19 April 2022.
When speaking with Dr Yoxall the Visa Applicant denied any trauma or abuse during his developmental years. The Visa Applicant recounted the worked in a communications business with his father which closed in 2008:[30]
Mr Asare Appiah said that he struggled to make a living and became depressed. He said that in Ghana, most people live in poverty. He said that there is very little opportunity to build a successful and happy life in Ghana. He said that unemployment is very high and the economy is very poor. He worked for a while in retail, buying and selling clothing. He said that he felt like a failure. He said that he felt as though he was letting down his parents because he wasn’t proving to them his ability to build a successful life. He said that his younger sisters moved to The Netherlands for a better life and remain living there. Mr Asare Appiah said that he formed the view that he needed to leave Ghana in order to have a happy and successful life. He said that this was not an uncommon belief in members of his generation, many of whom moved to Europe and Australia for a better life. He said that young people at the time, were regularly departing Ghana for a better life overseas. He said that in retrospect he felt a level of desperation to escape his sense of sadness, failure and the living conditions of Ghana.
[30] Exhibit 6, 9-10.
The Visa Applicant provided the following account, as quoted by Dr Yoxall, of how he came to Australia:
Mr Asare Appiah said that whilst he was working in retail, one of his clients, Mr Kojo Tskikaka (DOB: 03.09.1979), offered him use of his South African passport. He noted that they had similar features and he considered that the passport would allow him to leave Ghana and seek out a better life elsewhere. He said that Mr Tskikaka gave him some money to purchase a plane ticket.
Mr Asare Appiah noted that obtaining his own passport would have been costly and he didn’t have sufficient funds to pay for a plane ticket. He said that he was impulsive in taking up the opportunity presented to him at the time, without adequate consideration of the long-term consequences.
Mr Asare Appiah left Ghana in 2009 and travelled to South Africa and Hong Kong on the passport. When he was in Hong Kong, he met another African man who assisted him with accommodation and he made contact with a former associate from Gbawe who lived in South Korea. That person helped to arrange and pay for his plane ticket to New Zealand. Mr Asare Appiah travelled on a flight from Hong Kong to New Zealand with a transit stop in Melbourne.
He used the South African passport of Mr Kojo Tskikata (sic)to get on the plane but then reportedly destroyed it during the plane flight by flushing it down the toilet. Again, he said that this was an impulsive decision, driven by anxiety and uncertainty about the situation he was in and the potential consequences.”
Dr Yoxall’s report states that the Visa Applicant provided the following account of his application for a protection reason:
Mr Asare Appiah was transferred to Melbourne Immigration Detention Centre. On 15 February 2010, he applied for a Protection visa. He said that on impulse he thought up a story of being homosexual because he thought that this would be a hard lie to disprove. He said that he submitted a statement on the basis of a lie that he was fearful of returning to Ghana because he is homosexual and was persecuted by others when he lived in Ghana because of his sexuality.
He claimed that he had to flee Ghana due to this persecution because of his sexuality. He stated that he couldn’t return to Ghana as he would be persecuted for his sexuality again if he were to return and that he could be killed. He reported that his boyfriend George Osei was murdered in 2009 because he was open about his homosexuality. He claimed that he had been threatened and physically assaulted in Ghana because of his sexuality; that Ghana police had not provided any protection; and that he had been outcast from his community because of his sexuality. He signed a written statement on 11 February 2010 to this this effect.
On 23 August 2010, the application for the Protection visa was refused. He said that he still desperately wanted to remain in Australia and so he sought review of this decision at the Refugee Review Tribunal. On 15 December 2010 the RRT affirmed the Department’s decision. He then sought Judicial Review of his Protection visa refusal but on 1 March 2011, he elected to not pursue this application.[31]
At the time of the dishonest behaviour in Australia, between 2010 and 2014, information available indicates that his actions of entering Australia on a false passport and then lying on his Protection visa application were somewhat impulsive, opportunistic, immature and unsophisticated, and motivated by a combination of depression and desperation to establish a successful life outside the challenging living conditions of Ghana. His action in escaping detention appears very much to have been impulsive, opportunistic and motivated by a fear of further physical assault or even severe injury or death in the Immigration Detention Centre. It would seem that once he had escaped, he didn’t know how to ‘put things right’ and remain in Australia. He managed to establish some kind of basic life for himself, with support from a Church and others and then his wife. In this time, he realized the error of his ways and attempted to put things right[32].
[31] Exhibit 6, page 10
[32] Exhibit 6, page 22.

Addressing the risk of the Visa Applicant re-offending, Dr Yoxall observes[33] that most validated offending risk measurement tools assume prior offending, with the normative samples being used in such tools coming from offenders themselves.
[33] Exhibit 6, page 23.
Because of this aspect of offending risk measurement tools, Dr Yoxall then opines that the application of a general measure of the risk of general re-offending[34] ‘overestimates the Visa Applicant's risk of offending’.
[34] Exhibit 6, page 23, line 11.
From the Tribunal’s perspective, Dr Yoxall appears to form this opinion by delineating between his dishonest and unlawful behavior in Australia between 2010 and 2014 on one hand and the fact that he has no criminal convictions in Australia or Ghana on the other.
Dr Yoxall proceeds to observe that no risk assessment of an individual result in a zero risk assessment because human behavior is complex and, given a set of circumstances all individuals will present with some level of risk of offending. Dr Yoxall qualifies this observation by noting that one stable indicator of the risk of offending is the fact that the Visa Applicant has no recorded offences in Ghana or in Australia and has not offended since his return to Ghana in 2014.
Dr Yoxall assessed the Visa Applicant’s risk of general offending using the Level of Service Inventory – Revised (LSI – R).
The Visa Applicant's LSI – R score of 2 meant that 99.2% of the normative sample of subjects (using North American offender norms and subjects) scored higher than him. His score indicates a low risk of re-offending and a low level of rehabilitation needs.[35]
[35] Ibid, page 26.
In the North American offender normative sample set, approximately 11.7% of the individuals who scored in this range of the LSI-R test re-offended within 12 months.
Dr Yoxall concludes her report by observing that, from a psychological perspective, the Visa Applicant engaged in dishonest and deceptive behaviour between 2010 and 2014 in regard to his immigration and movements in Australia. This behaviour was motivated by factors including depression fear and desperation to seek out a better life. This behaviour was opportunistic, unsophisticated, impulsive and reflected a degree of immaturity and poor judgement. Her report’s ultimate opinion is that the Visa Applicant’s risk of offending is very low.
Dr Yoxall reports the following from her interview with the Applicant:[36]
Mrs Asare said that their separation has impacted her mental health significantly. She said that she is aware that it also impacts her husband substantially. She said that she is the only person in her family who can care for her mother and her mother cannot access the healthcare she needs in Ghana. This is the reason that they returned in 2016. She said that the financial cost of travel to Ghana (and being unable to work etc whilst there), in combination with travel bans during the COVID-19 pandemic has rendered her unable to travel back to Ghana to see her husband.
Character References[37]
[36] Exhibit 6, page 20.
[37] G20 to G48.
The Visa Applicant provided multiple character references. Having reviewed these references at length, the Tribunal has sought to summarise a representative sample below in its consideration of the Visa Applicant’s character.
Frederick Agyei
He is a director of INTERPOL Ghana and at the time of providing the character reference claims to have known the Visa Applicant for nearly 30 years.
He states that the Visa Applicant is of good character and is a positive role model who made a poor decision to enter Australia without a valid visa and regrets and feels remorseful about what he did in the past.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Andrew Tandoh
At the time of providing the character reference he claims to have known the Visa Applicant for 24 years.
He acknowledges the Visa Applicant’s migration history with Australia and states that the Visa Applicant has no questionable character.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Samuel Ackon, Managing Director of the Visa Applicant’s employer
He states that the Visa Applicant provided information to his employer about his migration history with Australia[38] “[i]n the process he showed much remorsefulness of the decisions he took to disobey Australian Immigration laws with regards to entering Australia and living in the community for so long when he did not have a required documentation.”
[38] G Documents, G22, page 130.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Pastor Eric Amoah Peprah
At the time of providing the character reference he claims to have known the Visa Applicant for 8 years.
He states that he acknowledges "both issues" regarding the Visa Applicant's immigration history and that he is grateful that the Visa Applicant has never repeated such behavior.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Bishop Davis Freeman
He has known the Visa Applicant since 2013.
He advised the Visa Applicant to “go through the right path to rectify the matter” (the Visa Applicant’s immigration status).
He states his understanding that the Visa Applicant was "frightened to go back to Melbourne because the ex– convicts in Melbourne detention center assaulted him.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
The Honorable Andrew Oppong Amoako
He has known the Visa Applicant for 6 years, which is subsequent to the Visa Applicant’s immigration history and events in Australia between 2010 and 2014.
This reference affirms the character referee’s shock that the Visa Applicant entered Australia with a false identity and left the detention centre.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Herbert Ofori Appiah, the Visa Applicant's father
Herbert Ofori Appiah, the Visa Applicant's father, states:[39]
‘He was a very responsible boy and young man which I entrusted to take management of my shop and he did this honourably. In fact, he managed the business well, that he advised me that we should use the profit money to build storey (sic) flats for rental to secure my wife and my future and for retirement income. Foster went on to assist in building these with me.’
[39] G39, page 168.
Elizabeth Best
Mrs Best is the Gyaasehema (Queen Mother) of Manso Nkwanta Traditional Area and has known the Visa Applicant since he was a child.[40]
[40] G30, page 148.
She does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Hector Wulff
He has known the Visa Applicant since primary school.[41]
[41] G31, page 150.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Julie Thompson
She has known the Visa Applicant since 2013 when she met him in Australia.[42]
[42] G34, page 157.
He does not mention anything in respect of the Visa Applicant in terms of his lying or impulsivity.
Samuel Kusi Manu
He has known the Visa Applicant since 1996.[43]
[43] G37, page 163.
He states ‘[i]n the process my friend narrated all the difficulties he had gone through in breaking the immigration laws of Australia. Foster felt very hurt, and sorry for doing that, vowed never to repeat that to any country. He has accepted that he got it all messed up and is very apologetic.’
Exhibit 2 International Health and Medical Services (IHMS) Records
These records cover the second period in 2014 that the Visa Applicant was in immigration detention.
Relevant records are:
(a)2 December 2014 Mr Asare Appiah has previously escaped from detention (MIDC). His also had numerous incidents recorded whilst at MIDC including threat to self-harm and assault.[44]
(b)27 August 2014 Mr ASARE will be notified of his Partner Visa decision (refusal) today. He has a migration agent, who will also be notified of the decision. Please also note that Mr ASARE has a history of threatening self-harm (after receiving negative news at MIDC) as well as of assault and escape[45].
[44] Exhibit 2, S1 page 81.
[45] Exhibit 2, S1 page 82.
Exhibit 2.1 IHMS Records
These records cover the first period between 2010 to 2011 that the Visa Applicant was in immigration detention.
Relevant records are:
(a)The IHMS report for the Commonwealth Ombudsman dated 28 January 2011[46] records only the alleged 12 September 2010 assault on the Visa Applicant and not the subsequent alleged November attack. The report does include reference to the Visa Applicant being placed on suicide and self-harm observations on 24 September 2010.
[46] Exhibit 2.1, pages 164-165.
Consultation report dated 25 November 2010: "Head checked. Wound has healed and scab still present.”[47]
[47] Exhibit 2.1 page 13.
Consultation report dated 16 November 2010: "Risk – Kofi will receive a negative decision for his Community Detention application tomorrow and presents a risk of self harming behaviour."[48]
[48] Exhibit 2.1, page 19.
Consultation report dated 7 October 2010:
“Informal catchup in zone at client's instigation - easily engaged - content pertaining to - fear of going mad and feeling death would be preferable to being free and 'mad', despair regarding lack of response regarding CD and waiting 7 months for an interview. RRT next Thurs. "I have been warning people: when I reach my fed up limit, which will be very very soon, they will find me dead."”[49]
[49] Exhibit 2.1, page 23.
Consultation report dated 29 September 2010 by Mental Health Nurse Rivera:[50]
[50] Exhibit 2.1, page 26.
‘Seen by MHTL to review mental state, readily engaged upon approach. Lowered mood, however, warmth, and reactive to humour.
;
Denies active suicidality, however, hesistant (sic) to guarantee safety "If I stay here I don't know what is going to happen"
;
DIAC-Seen by DIAC case Mx Simon and given an update on CD submission; agreed to follow up next week. Kofi will see his migration lawyers again on Friday 01/10/10 to prepare for his RRT, scheduled for 14/10/10.These appear to be protective factors.
;
ACTIONS
Discussed at PSP meeting, PSP 'Ongoing' ceased.
;
PLAN
Agreed to be seen again on monday (sic) 04/10/10 and to self refer earlier if required.’
There is no mention of the assault or the Visa Applicant's fears for his life on 10 September 2010.
Consultation report dated 27 September 2010 by Mental Health Nurse: this report records the Visa Applicant's suicidal deviation and records a suicide attempt in July 2010 but again there is no mention of the earlier September assault or the Visa Applicant's concern for his life and safety.[51]
[51] Exhibit 2.1, page 29.
Consultation report dated 27 September 2010 by Mental Health Nurse records the following:[52]
‘Seen by MHTL in Zone B where Kofi has been moved to ensure his safety; has spent the weekend in Zone C accommodation following verbal threats to be killed by his attackers (x3) who assaulted him on Friday 10/09/2010.
;
Described sequelae of events including: the assault that occurred on Friday 10/09, making a police statement 11/09 and the follow up he has had with serco with regards to maintaining his safety.
;
Articulated himself well with minimal stuttor; ventilated with effect. Mood angry at situation, however, easily de escalated with warm affect.
Kofi was given his follow up appointment with G.Lopez scheduled next Wednesday 22/09/10 in pm’.
[52] Exhibit 2.1, page 31.
Consultation report dated 12 September 2010 by Primary Health Nurse:[53]
‘Client was involved in altercation the other night with co-detainee, he was apparently struck from the side, mild swelling to r) side of jaw - is able to open and close jaw. Complaining of neck stiffness, explained that this is a result of the altercation, he has full range of movement in neck. Has appointment with GP tomorrow so can discuss this further with him
;’
[53] Exhibit 2.1, page 33.
Consultation report dated 11 September 2010 by Primary Health Nurse:[54]
‘Alleged assault last night . He was hit to the side of his face and small mark on Right hand No Loc, Neurologically stable pupils equal and reacting, size3+
Equal power on right and left side of body
GCS15
Orientated to time and place
Slight swelling on right side of his jaw and muscles sore in right side of face.
Clearly unhappy about not going to hospital but there is no clinical indication to go to hospital. Triage nurse notified and happy with this assessment
;’
[54] Exhibit 2.1, page 34.
Psychiatric consultation with Dr Susan Weigall[55] dated 16 August 2010[56]:
[55] Exhibit 2.1, page 49 indicates Dr Weigall’s specialty.
[56] Exhibit 2.1, page 48.
‘Interpreter Used: No
Kofi Asare is a 30yo Ghanaian man who left Ghana in Dec 2009 arriving in Australia in Feb 2010.
;
He left Ghana thinking his problems would be over once he got to Australia, only to find himself imprisoned here.
He feels very angry and depressed about his situation.
He used to feel depressed at home but could calm himself by going for walks or talking with friends.
He finds being imprisoned v difficult and says everyone here is depressed.
;
On 26/7/10 prepared to hang himself.
.
2/8/10 Mirtazapine 30mg started; has taken intermittently, felt it helped him sleep.
;
11/8/10: drank some detergent.
;
Describes suicide attempts as impulsive. Says he is prone to doing this whenever he gets distressed about his case.
Reports 5 months of sleep disturbance: initial and middle insomnia, naps during the day.
Poor appetite, poor concentration.
Only enjoyment has been playing sports (table tennis, volleyball, soccer).
;
MSE Young man with stutter who is depressed and became loud and irritable when describing his indignation about how he has been treated in Australia. No current suicidal ideation or plans. Preoccupied with the lack of progress in his case. Suffering. Would like to be put to sleep until his case is determined.
;
A: Ghanaian man who has become depressed in the context of finding detention intolerable. Community detention would be preferable.
Risk of impulsive self harm will remain while in detention, but may lessen on regular antidepressant. No plans to harm self now.
;
P: Explain need to take antidepressant regularly and that in 2 weeks we can determine if he needs higher dose. Kofi agreeable to this.
Needs to be active (sports) during day to distract himself from his distress and not nap during the day.
;
*** Still would like to see dermatologist as suggested by Dr Ed Morgan.’
Consultation report by Campbell Sinclair, psychologist, dated 11 August 2010:[57]
[57] Exhibit 2.1, page 56.
‘Interpreter Used: No
;
;
Client placed on constant observation in Zone A yesterday following consult with Donna Thomson (MIDC DIAC-Serco contract Mx); reports Mr Asare was agitated and threatening self harm; nil vacant bed in Zone C.
;
Seen by psychologist today; presented very down, flat mood, despondent, "sick of waiting for answer from Case manager". Client threatened self harm if he does not get an answer from DIAC now.
;
ACTIONS
Recommended he be moved to Zone C for to maitain (sic) his safety. Client attempted to drink some diswashing (sic) liquid on the way to Zone C - SERCO able to remove container - may have swallowed some liquid, unquantifiable. Checked with Mfg. (Pental Products) as no indication on bottle of contents of liquid. Anthony (Q & A) Manager ( Country Life Dish Liquid) phn 03 5820 5200 - advised it is only an irritant if gets into eyes - if so flush with water.
If swallowed give water and or milk. Observe if any adverse side effects develop take to Doctor.
Incident report completed and forwarded to Detention Health; local DIAC notified verbally.
;
PLAN
Mr Asare to remain in Zone C to contain risk of impulsivity and due to his manipulating intent of self harming based on a DIAC response.
To be reviewed by MHT on friday (sic) 13/08/10
;’
Consultation report dated 2 August 2010 by Mental Health Nurse:[58]
‘;
Seen by MHTL at his request with the view of assessing risk to come out of Zone C to walk in the courtyard.
;
Discussion with Kofi about previous threats made to harm himself if he is not released from detention; and moreover, his unwillingness to diclose (sic) a plan but emphasising intent.
;’
[58] Exhibit 2.1, page 63.
Consultation report dated 1 August 2010 by Mental Health Nurse:[59]
‘;
;
Seen by MHTL in Zone C at Kofi's request. Presents as low in mood with underlying anger at current situation. Projected anger, ventilated frustration, and verbalised suicidality; nil plan, but intent on placing pressure to escalate case with same.
Explained that suicidal acts and deliberate self harm will not solve or escalate the missing components of his application for PV; amenable to suggestion of finding out what is missing from same and/or the source of what is keeping a decision on hold.
;’
[59] Exhibit 2.1, page 71.
Mental Health Review by Campbell Sinclair, psychologist, dated 30 July 2010:[60]
‘;
;
Assessed client on 28th following medical review. Client very down, feels helpless, "nothing worth living for, no family, been here 6 months - too long - I came for help and this is how I am treated". Yes I have been to Foundation house but not helpful. Client appeared very despondent with suicidal ideation. Spoke to Mental Health Services Manager and Team leader and recommended he be given some medication and to see the GP tomorrow for review. This was arranged..
;’
[60] Ibid.
Report from the Western Hospital Emergency Department dated 21 November 2010:[61]
‘KOFI ASARE presented to the Emergency Department at Western Hospital Footscray on the 21 NOV 2010 at 14:44. The presenting problem was HIT WITH POOL QUE (sic) ON TOP OF HEAD TODAY AT APPROX 1330 LAC TO TOP OPF HEAD WITH ASSOC DIZZINESS.
The diagnosis was WOUND OPEN (LACERATION, CUT) - HEAD. EXCLUDES FACE (2)
Kofi is a 31 yer (sic) old gentleman who presented to us with injury to his head when he was hit by a pool que (sic) today in the detention centre he was in. He did not have any LOC.
On examination his observations were normal. He was observed for fours after the injury and his observations were normal. He was not sure of the Tetanus status and if he is not covered then he might need Inj ADT. He had a small laceration to his scalp which was glued and advise not to wet it for 5 days.’
[61] Exhibit 2.1, page 264.
Exhibit 3 2014 Detention Records
These records address the administrative actions relating to the Visa Applicant during his second period in immigration detention.
Oral Evidence
The witnesses who gave evidence during the hearing were:
(a)The Visa Applicant, Foster Kofi Asare Appiah;
(b)The Applicant, Natalie Ann Asare Appiah Johnson;
(c)Frederick Agyei;
(d)Davis Freeman;
(e)John Kofibaa Apea;
(f)Eric Amoah Peprah;
(g)Lesley Elizabeth Johnson;
(h)Dr Jacqueline Susan Yoxall; and
(i)Debbie Stanford.
The Visa Applicant’s evidence.
Key aspects of the Visa Applicant’s evidence are described below:
(i)The Visa Applicant recounted his January 2010 arrival in Australia using someone else's passport. He claimed that he was in financial hardship and down emotionally when one of his customers offered him the loan of their South African passport.
(ii)Initially the Visa Applicant’s idea was to travel to New Zealand, not Australia, but claimed he had a change of mind when he was in the aircraft.
(iii)He recounted his time in the Maribyrnong Immigration Detention Centre and the alleged attacks he suffered from other inmates. He claimed that the alleged attacks were unprovoked and that a gentleman had walked up to him while he was in the computer room using a computer and said that he wanted to use the computer. The Visa Applicant said “I'm not done yet” and he was then punched in the face
(iv)He recounted the second alleged attack he suffered with the assailants using a pool cue, resulting in a hospital visit and stitches to his head wound.
(v)He asserts that at the Maribyrnong Immigration Detention Centre in 2010 non-citizens were mixed with convicted criminals.
(vi)He claimed that he feared for his life when he learnt that one of the detainees who had attacked him was looking for a pair of scissors to stab the Visa Applicant.
(vii)The Applicant claimed that he had seen the same man who attacked him attacking other people in a violent manner and that he was afraid for his life as a result he stated that:
‘I would not say it was right for me to leave there. It was a stupid decision I made but - and I made it out of being afraid of my life whilst I was at the centre because I thought the guards in there wouldn’t be able to protect me.’[62]
[62] Transcript, page 14, lines 16-18.
(viii)He conceded that absconding from Maribyrnong Immigration Detention Centre was an irrational decision but claimed that the circumstances that he was suffering from at the time were unusual and extraordinary.
(ix)He recounted how in 2014 he had begun applying for a passport and lodging an application for a partner visa.
(x)He described what he has done in Ghana since he returned there, including furthering his education, finding a job as well as community and charity work.
(xi)He also described how, prior to the COVID pandemic, his wife and his mother-in-law have visited him in Ghana and met his family.
(xii)He claimed that, if allowed to come to Australia, he would respect the laws of Australia because of his wife and that she is the reason why he would come to Australia.[63]
[63] Transcript, page 16.
(xiii)Under cross examination he stated that he disposed of the South African passport on the aircraft between Hong Kong and Melbourne because he thought it might help his prospects.
(xiv)He conceded and agreed with Ms Prasad that he made a bogus application for a protection visa, including his claims that he had been assaulted in Ghana[64] and that he had suffered assaults because of that status prior to arriving in Australia.
[64] G10, pages 74-77 and Transcript, page 18, lines 22-26.
(xv)He conceded that he lied to the IHMS counselling service[65] when he told the service that he had suffered traumatic events because of the disclosure of his alleged sexual orientation.[66]
[65] Transcript, pages 18 line 45 -19 line 9.
[66] Transcript, page 19, lines 4-9.
(xvi)He disclosed that he ‘…was caught up in my lies…’.[67]
[67] Transcript, page 19, line 14.
(xvii)He claimed that a migration agent told him to persist with the lie that he was homosexual as part of his partner visa application.[68]
[68] Transcript, page 19, lines 43-44.
(xviii)He described how he lived between absconding from Maribyrnong Immigration Detention Centre in 2011 and before being detained in 2014, taking casual work in exchange for money and food[69] and acknowledged that he did not pay any tax.[70]
[69] Transcript, page 20, lines 13-17.
[70] Transcript, page 20, line 28.
(xix)When questioned as to why – in a series of medical and mental health meetings from September to December 2010 – he did not tell the health workers that he was in fear of his life due to the alleged attacks on him in September and November 2010, he initially gave an evasive and discursive answer.[71]
[71] Transcript, page 23 line 41 – page 24 line 5.
(xx)He then claimed that he had talked to the health workers about this and that, in addition, as the alleged attacks had been reported to the Commonwealth Ombudsman,[72] he realised that that there is no need for him to mention the incidents.[73] He also claimed that some of the attacks were verbal ‘… which I couldn’t report them all the time.’[74]
[72] Respondent’s Further Supplementary bundle, pages 162-165.
[73] Transcript, page 24, lines 6-8.
[74] Transcript, page 24, lines 14-15.
(xxi)Furthering this line of questioning, Ms Prasad then asked the Visa Applicant:[75]
[75] Transcript, page 25, line 19 – page 26, line 47.
‘R: Now on page 9 of the first supplementary document there is a - you made a self-referral to go see a psychologist on 6 January 2011. Now, this would be after the pool cue incident in November 2010, would you agree?
VA: Yes. Well, it’s documented.
R: And what you say to that psychologist is - what the record - sorry, the record that’s here, what it states is:
“Client feeling a bit down.”
R: It’s a direct quote.
“Process taking too long. Feels Australia has treated him very badly. Too much thinking time. Ponders too much on the torment and emotional punishment he endured back home.”
R: I presume this was you were still continuing your false claims to be homosexual at this time.
“No family support or contact. No friends in Australia.”
R: So that’s what you spoke to the psychologist about. There’s no mention that I can see on that page to you being fearful for your life because of these particular people. Would you agree?
VA: Yes.
R: Okay. Now, in light of the records that I’ve just taken you to, Mr Asare Appiah, would you accept that during your time in immigration detention, that you had people you could talk to. Those psychologists, counsellors and the GP?
VA: M’mm.
R: Yes, okay?
VA: Yes.
R: And, you know, you saw a psychologist or a mental health nurse and the external counsellor and those people regularly provided you with support throughout this year in immigration detention? I’m sorry, I missed that Mr Asare Appiah, is that a yes?
VA: Yes.
R: Yes. Thank you. Okay. The issue that I am drawing to your attention is that you claim that you escaped immigration detention which the Minister says is extremely serious conduct. You say, “I escaped immigration detention because I was fearful for my life. I was being targeted by these people.” But the first issue that I have is that - with this timeline is that there are only assaults recorded in September and November of 2010. You make no mention - the second issue is that you make no mention of being fearful of these people and being fearful of your life in relation to the harm that these particular people can cause you. There’s no evidence of that. And yet you continue to claim that because of your fear of those people and you feared for your life because of those people, that is the reason you escaped immigration detention. But there’s no objective evidence in the material before the tribunal that establishes that your claims and your justification for escaping immigration detention?
VA: Yes. This - the incidents were something that I had to live with each and every day when I wake up in the morning. And, you know, I see these people walking around, I’m very afraid. I’m very frightened. It was, like, if you want to (indistinct) or the - or if you want to go to the Foundation House, you have to book an appointment. And sometimes something happened (indistinct) like a month or two months or some weeks before you even see them. Because (indistinct) have been on there. But these are people that I was living with each and every day. (Indistinct) attacking me physically, verbally. You know, they would say something to me. It was a (indistinct) and to be frank, I was afraid of my life.
R: On the basis of the evidence and the issues that I’ve just raised with you, Mr Asare Appiah, I put to you that you did not feel threatened by these people or you were not as fearful of these people as you later claimed when you tried to justify your escape from immigration detention. And I put to you, Mr Asare Appiah, that you have made up this explanation or this story that you were scared of these people to minimise the seriousness of your conduct of escaping from immigration detention?
VA: Well, I mean, if you look at my records, even at the centre, never was I violent with anybody. I was one person who really, you know, who really loved people and, you know, would talk to everyone and, you know, (indistinct) you know, live with people. I have never been in a position whereby I would actually go and (indistinct) or anything. But the incident was - I was afraid of my life in there. And it’s on there because I was hit by the pool stick. I was punched. I was (indistinct) and these were big men who are from, you know, from the prisons. All of my life I have never met (indistinct) like that before.’
(xxii)When asked why he decided to abscond on the day that he escaped from immigration detention, the Visa Applicant claimed that as he was attending a church service he had a moment of clarity about the value of his life and that absconding ‘… was just an irrational decision I just made.’[76]
[76] Transcript, page 27, lines 18-19.
(xxiii)The Visa Applicant agreed that he lived with the Applicant and a foster child from December 2013 to July 2014 and that he did not inform the authorities that he was doing so. He then conceded that he had made a false claim in his 1 September 2021 letter[77] where he wrote:
[77] G Documents, G15, Attachment J, Annexure 1, pages 103-106.
‘I can assure you, during the 3 years I remained unlawful within the Australian community, I did not commit any crime or offence.’[78]
[78] Op cit, page 104.
(xxiv)The Visa Applicant stated that he and the Applicant went to the Ghanian High Commission in May 2014[79] to apply for a Ghanaian passport after applying for his Ghanian birth certificate in January 2014.[80] He conceded that he had been unlawfully in the community since 2011 but had not applied for a Ghanian passport before then.[81]
[79] When the relevant documents were subsequently tendered on 25 January 2023, Ms Prasad observes that all are dated in June 2014 – Transcript, page 132, lines 33-36.
[80] Transcript, page 30, line 38.
[81] Transcript, page 29.
(xxv)He qualified this answer by stating that he was afraid for his life and was working, watching over his shoulder all the time, and claimed that he remained fearful of the people who assaulted him in the Maribyrnong Immigration Detention Centre for the three years after he had escaped.[82] When asked to explain the effluxion of time since absconding to when he sought to legitimise his presence, the Visa Applicant answered with:
[82] Transcript, pages 29-30.
‘Yes. Correct. But you know, time run fast. Very fast.’[83]
[83] Transcript, page 30, line 47.
(xxvi)Ms Prasad then questioned the Visa Applicant on his remorse for his actions:[84]
[84] Transcript, page 35 lines 1-24.
‘R: I understand at the time you were planning to go to New Zealand but you ended up disembarking in Australia. Making a false protection visa application claim. And then pursuing that false protection application for - through the Department, through the Refugee Review Tribunal, and I understand through to the court. And then escaping from immigration detention, working when you didn’t have work rights, not paying tax, and then being located by the Department, immigration authorities. And you’ve accepted that in particular it’s the escape from immigration detention is very serious conduct. But all you’ve been able to articular is that you’re sorry but you haven’t actually been able to identify what it is about your conduct that you are remorseful for and why you feel bad. So what I’m going to put to you is that you don’t genuinely feel remorseful, you are only remorseful because your conduct in Australia during 2010 to 2014 has prevented you from getting what you want, which is a partner visa to enter Australia and reside here on a permanent basis?
VA: Well, I mean, when I met my wife, she’s the love of my life, you know. Like, I keep saying it, I’m remorseful. It was a bad decision. A bad decision that I made, you know. It’s been with me for - it’s been with me for the rest of my life now since I’ve been married. It’s made life very difficult for me. It’s not about, you know, I mean, me and my wife, we do have a lot of plans. And besides that I’m not - since I’ve been here I’ve, you know, I’ve learnt from my past. It was a bad decision I made then and, you know, I want to be given the opportunity to be able to do the right thing. For me to go to my wife in Australia, I’m a better person than I was before.’
‘Ms Prasad then questioned the Visa Applicant about his lying while in Australia:
“R: Mr Asare Appiah, the final issue that I want to raise with you is about the fact that - and we’ve talked about this, but your conduct while you were in Australia for almost five years. Now you have to accept, don’t you, that when you were last in Australia for that almost five-year period, you consistently lied to the Australian government? So do you agree that when you were here you lied to the Australian government and immigration authorities about who you were and came in on a different passport?
VA: Yes, yes.
R: Then you lodged a bogus protection visa application?
VA: Yes.
R: Would you agree, that was a lie? And you continued with that lie for at least a couple of years by keeping that application - protection visa application going. And then, I guess it’s not so much of a lie but you didn’t act - you weren’t forthright with immigration when you just escaped immigration detention and were in the community for more than three years. Now, at that time you said that you made a bogus protection visa application because you really wanted to leave Ghana. Okay. I put to you that your history shows that you are willing to do anything - at that time you were willing to do anything at all to get a visa, whether it was a protection visa or a partner visa, so that you could stay in Australia. Now ‑ ‑ ‑?
VA: Well
R: Go on, Mr Asare Appiah?
VA: I think I’m not proud of what I did and I’m sorry. I’m very remorseful for that. In fact, you know, lying is not a very good trait. You have to, you know, suffer the consequences of, you know, doing that. It’s very hard.
Under re-examination, the Visa Applicant agreed with Mr Northam’s suggestion that he made multiple mistakes between his 2011 absconding and his 2014 return to immigration detention and that he regretted those mistakes[85].
The Visa Applicant, under Mr Northam’s questioning, also established that he voluntarily returned to Ghana in 2014[86] rather than continuing actions intended to keep him in Australia.
The Visa Applicant maintained that IHMS medical staff were aware of the assaults upon him in the Maribyrnong Immigration Detention Centre.’[87]
[85] Transcript, page 38, line 38.
[86] Transcript, page 39, lines 43-45.
[87] Transcript, page 40, line 25.
The Applicant

Key aspects of the Applicant’s evidence are described below:
(a)During examination-in-chief, the Applicant described how she met the Visa Applicant, the start of her relationship with him, her disclosure to him about the consequences of her ovarian cancer and her view that he was remorseful about his immigration history after he disclosed that to her.[88]
[88] Transcript, page 46, line 34 – page 47, line 45.
(b)In discussing the Visa Applicant’s honesty with Mr Northam, the following exchange took place:[89]
[89] Transcript, page 48, line 20 – line 33.
‘Northam: I know this is kind of an odd question but looking back at what he told you then, when he first admitted his - what he did, and now with the passage of time, have you found that any of his original statements to you were false or misleading or incorrect?
A: Besides his immigration, do you mean?
Northam: Well, I mean, now that you’ve - he told you about his immigration issues but since that point you’ve spent a lot of time dealing with those issues, I know, to help him?
A: Yes, yes, yes.
Northam: With the passage of time have you discovered that he - any of those original admissions he made to you were incorrect?
A: No.’
(c)The Applicant described the relationship between the Visa Applicant and the foster child, the Applicant was responsible for while the Visa Applicant and the Applicant were living together between December 2013 and July 2014, addressing why she had not alerted the foster child authorities to the fact that the Visa Applicant was living in the same house as the foster child.[90]
(d)She described her visits to Ghana and her relationship with the Visa Applicant's mother father and siblings and how she could not stay there longer because her mother, who accompanied her, had health issues.[91]
(e)The Applicant also described what she and the Visa Applicant discussed about having children, given that she was unable to have children and they were looking at IVF with an egg donor.[92]
(f)In cross-examination, the Applicant took on responsibility for not informing the foster child authorities about the Visa Applicant’s presence in her household.[93]
[90] Transcript, page 49, lines 13-17.
[91] Transcript, page 49, line 28 – page 50, line 16.
[92] Transcript, page 50, line 18 – line 32.
[93] Transcript, page 53, line 5 – line 22.
Frederick Agyei
Frederick Agyei has been and is a family friend of the Visa Applicant for 25-26 years, knowing the Visa Applicant’s father and late mother as well. His oral evidence is summarised below:
(a)He stated that the Visa Applicant made a few wrong choices when he travelled but believed that he was of good character.
(b)He stated that the Visa Applicant had explained to him that:[94]
‘… the reason why he’s remorseful was that he had a good relationship, he had something good going with Natalie and now he has lost that kind of relationship and he wants to be given an opportunity to make amends.’
[94] Transcript page 62, line 46 – page 63, line 2.
Pastor Davis Freeman
Pastor Freeman recounted meeting the Visa Applicant in 2013 in a church service in Sydney.
The Visa Applicant appears to have last had contact with the witness in 2021 and that he was aware of what the Visa Applicant was doing in Ghana.
Under cross-examination, the witness agreed that he knew that the Visa applicant arrived in Australia using someone else's name and passport and that he lodged a protection visa application. He was unclear on what else he knew about the protection visa application but did know that the Visa Applicant was in the Australian community unlawfully for three years. He stated, as delineated in his written statement that he advised the Visa Applicant in 2013 to go back to Melbourne and report his presence to the authorities.
His understanding is that the Visa Applicant did not follow this advice at the time.
In response to questions about what happened to the Visa Applicant in the Maribyrnong Immigration Detention Centre the witness stated:[95]
‘Yes, he told me he was being bullied by - abused - bullied by the top guys in prison. That he was fearful of his life. So one time when he had the opportunity to go out, he decided not to go back to be bullied again.’
[95] Transcript, page 68, lines 27-29.
John Kofibaa Apea
John Apea is the Visa Applicant’s brother.
The witness affirmed his statement, described the Visa Applicant’s conduct in Ghana since he returned to Ghana and stated that he was a person of good character.
Under cross-examination, the witness stated he was unaware that the Visa Applicant had applied for an Australian protection visa.
Pastor Eric Amoah Peprah
The witness affirmed his undated statement which was estimated to have been made in 2021 and described his counselling of the Visa Applicant regarding the alleged assaults in Maribyrnong Immigration Detention Centre.
The witness stated that the Visa Applicant had had feared for his life.
Under cross-examination in relation to the Visa Applicant’s immigration history and what the witness knew of this, the following testimony was given:[96]
[96] Transcript, page 76, lines 17-43.
‘R: Can I just clarify with you - you say that you are aware of both issues regarding Mr Asare Appiah’s immigration history. Can you please tell the tribunal what they are?
W: Yes. He first told me how he came to Australia with a different passport - of a friend. That is number one. Number two, he told me how he ended up in detention and escaped from detention because of the trauma he went through over there of somebody attacking his life. These are the two that I know.
R: Thank you. Okay, I take it, Pastor, that you weren’t aware that Mr Asare Appiah lodged a protection visa in Australia, in which he falsely claimed to be homosexual. Did you know that?
W:Say again, please.
R: You told me that there were two immigration issues that Mr Asare Appiah was facing, and that he told you about two issues. I wanted to ask you if you knew that there was a third issue where Mr Asare Appiah lodged a protection visa application and falsely claimed to fear harm in Ghana because he is homosexual. Did you know about that protection visa application?
W: Yes, he opened up that time - his status - of how he came. Yes, he opened that to me.
R: Can I ask why didn’t you put that into your statement?
W: No, with this two that he told me, the first one was when he came to Australia with different passport, and the second one is when he went to - how he came out from detention centre, yes.
R: Okay, well, I think that there is a third issue there - that he lodged a fake protection visa application - would you agree with that? That there are three immigration issues?
W: I just know the two.’
Lesley Elizabeth Johnson
The witness is the Applicant’s mother and the Visa Applicant’s mother-in-law.
She affirmed her statement.
Dr Jacqueline Yoxall
The witness described her assessment of the Visa Applicant just under 10 months ago via video conference as he was in Ghana:[97]
‘The assessment involved a range of things. First of all, obviously the reveal and consideration of all of the material that is provided in the referral. The assessment involved an in-depth discussion interview - clinical interview - of Mr Asare, his life circumstances, his background, a range of different components and substantially incorporating his behaviours and the whys. The “Why you?”, “Why this?”, and “Why now?” - all the aspects of that person’s life and background that appear to be relevant to the circumstances by which we are having the assessment, and of course here it was a range of circumstances and particular questions around his risks to community.
I often have people then complete questionnaires and again, thanks to COVID, these publishing houses have now arranged a lot of online secure platforms and ways of doing it, whereas we used to do pencil and paper. Look, I grappled this with Mr Asare - there are issues in terms of normative samples, and that relates, if you can imagine, to the construct you are trying to assess. For example, personality is a fairly - in the way we view it - fairly westernised concept. Different groups or people with different ethnic backgrounds may view personality in a range of different ways, but a test that I might have developed for a westernised group of people - Caucasian predominately - might not be relevant or appropriate to administer to somebody who has come from a different culture with a different lens as to what personality is. So, there are cultural differences.
I didn’t, with Mr Kofi, ask him to do a range of questionnaires that may often be the - because I felt that by my consideration of it that it wouldn’t be appropriate or particularly necessary in this case. What I often try to do is have the conversation then with the staff and of course outline to Mr Asare what I was going to do in having conversation with Natalie. Of course, I recognise Mr Asare because I have seen him. I don’t recognise Mrs Asare because we spoke on the phone, but we did several weeks post - probably two weeks after I spoke to Mr Asare. Of course, that material is considered in consideration with obvious issues of human nature, that people - not necessarily the perceptive manner but it is adaptive to protect one’s self in these circumstances and to try and unpack and unpick what triangulates him and seems to coalesce in terms of where things are sitting.’
[97] Transcript, page 85, lines 13-47.
She then commented on the framework of her assessment of the Visa Applicant:[98]
‘The assessment involved a range of things. First of all, obviously the reveal and consideration of all of the material that is provided in the referral. The assessment involved an in-depth discussion interview - clinical interview - of Mr Asare, his life circumstances, his background, a range of different components and substantially incorporating his behaviours and the whys. The “Why you?”, “Why this?”, and “Why now?” - all the aspects of that person’s life and background that appear to be relevant to the circumstances by which we are having the assessment, and of course here it was a range of circumstances and particular questions around his risks to community.
I often have people then complete questionnaires and again, thanks to COVID, these publishing houses have now arranged a lot of online secure platforms and ways of doing it, whereas we used to do pencil and paper. Look, I grappled this with Mr Asare - there are issues in terms of normative samples, and that relates, if you can imagine, to the construct you are trying to assess. For example, personality is a fairly - in the way we view it - fairly westernised concept. Different groups or people with different ethnic backgrounds may view personality in a range of different ways, but a test that I might have developed for a westernised group of people - Caucasian predominately - might not be relevant or appropriate to administer to somebody who has come from a different culture with a different lens as to what personality is. So, there are cultural differences.
I didn’t, with Mr Kofi, ask him to do a range of questionnaires that may often be the - because I felt that by my consideration of it that it wouldn’t be appropriate or particularly necessary in this case.”
And:[99]
“Obviously, these psych assessments are heavily dependent on what the person tells you and what their interpretation of the world is, but from there, obviously, there is my knowledge, my background, my experience and my training to come into that. Then, of course, the use - again, some tools and measures that we use in the area of risk of reoffending, but again we have to consider that there are gaps between the population that we developed them for and the population that we are using them on, and then of course the provision of the report, attesting as best I can with my capacity to answer the questions you posed.’
[98] Transcript, page 85, lines 13-38.
[99] Transcript, page 86, lines 1-10.
Mr Northam then asked whether Dr Yoxall felt that the Visa Applicant’s responses were false:[100]
‘Northam: Can you comment on any point during the assessment of either the applicant or his wife - did you feel the responses you were getting from them were false or untrue?
W: No, I did not, and I am very aware that is not always the indicator of whether somebody is being false or untrue. My PhD was in detection of malingering, actually, so I am very interested in deceit, but no. For a bunch of reasons, there was a high level of consistency in a range of spaces that were not necessarily working to a particular script that anybody could have known. The genuineness and warmth that was presented was apparent. There was a high level of familiarity with each other’s lives and circumstances, and what they appeared to be presenting to me, from my perspective with all those considerations, appeared to be genuine.’
[100] Transcript, page 86, lines 12-22.
Dr Yoxall then testified to her conclusion that the Visa Applicant’s risk of re-offending is very low:[101]
‘Northam: I would like to take you to number 11 in your report, which is on page 27, “Summary and conclusion.” Looking at the third paragraph, there you state that the applicant’s risk of reoffending is very low, as outlined in the body of the report. Can you talk a little about why you came to that conclusion? If there are any comments you can make to go beyond this or summarise this, or characterise it?-
W: Yes. This is a difficult - a challenging circumstance that requires a lot of consideration because we actually - from an offending point of view and offending definition - whilst Mr Asare has engaged in dishonest behaviour and whilst Mr Asare has done that on more than one occasion - he doesn’t actually have a criminal history per say. Now, when we think about the vast literature of risk of reoffending and offending behaviour, there is a substantial reliance on the area of prediction of reoffending that somebody has offended. It makes sense, so all of the populations we are working with, we are looking at incidents of reoffending rather than incidents, I suppose, of the general population that doesn’t have a criminal history but then goes on to offend. That sounds like semantics but essentially the question is, “On what scale do you attempt to place Mr Asare in terms of offending?”
We know that if we go to risk factors for offending, which tend to stand across population, we know there are some things that together increase risk of reoffending. The most stark piece here would be his demonstration of preparedness to lie, but if we - to deceive, more than lie, as obviously there are the issues of the passports and other pieces which took more organisation than spontaneous lying - but if we look at that across the population, that is not a clear and accurate predictor of who is then going to go and criminally offend, if that makes sense. Although within that group, there is also a range to the degree that the person is prepared to lie, so I am talking broadly, here.
In consideration of all of that but also where he was at the time of the lying and what were the variables that contributed to his decision to lie, what were the factors, and where was he now – on that component, I assess that there was a substantial amount of – change might not be the right word because he isn't a person who has fundamental aspects that would indicate offending. He comes with a range of factors in his childhood that do not suggest that he likely to be an offender, but for a period of time he did lie and engage in deceitful behaviour, and then since then he has now demonstrated a different set of behaviours from what we can tell. Rather than change, I would say mature, developed insight, get a greater perspective and understanding of the consequences of his behaviour and how that sits in the context of living in a country such as Australia.’
[101] Transcript, page 86, line 24- page 87, line 16.
In cross-examination, when questioned about the fact that absconding from the detention centre constitutes an offence that can be punishable by a term of imprisonment, Dr Yoxall clarified[102] that a ‘heavy’ indicator of re-offending in the literature is based on previous convictions, not charges, and that she would have been remiss to include the absconding as a prior conviction history.
[102] Transcript, page 87, lines 34-42.
Dr Yoxall stated that she had actually scored the Visa Applicant under the LSI-R test for ‘escape from a correctional facility’ as an indicator in terms of propensity to offend, acknowledging that in reality the Visa Applicant absconded from an immigration detention facility.
When questioned about an alternative hypothesis surrounding the Visa Applicant’s absconding – that he simply chose to abscond and was not threatened – Dr Yoxall answered that this would not substantially change the overall risk of re-offending because:[103]
‘… it sits within the broader piece that, from a behavioural perspective, is about somebody engaging in dishonest behaviour in a state of desperation to be in the a country, and I say desperation because those are the words he has used and he has gone to great lengths to be here. Misguided potentially, illegally potentially, but that has been the goal and that didn’t really change across that period of time.’
[103] Transcript, page 88, lines 42-47.
When questioned about the incompatible reports of what and when the Visa Applicant told the Migration Review Tribunal regarding his application for a protection visa based on his alleged homosexuality and whether this affected his risk of re-offending, Dr Yoxall responded as follows:[104]
‘… here’s the problem: Lying is only one component, and is only one component of estimating the risk of reoffending. If we are talking about a larger amount of lying or more substantial lying in different spaces, or extension of a lie, it potentially has got a particularly - he has not put himself in a glowing light by doing that, but it doesn’t necessarily increase the risk of reoffending, if that makes sense, because the engagement in lying had been already established as quite serious - as serious lying with serious consequences where the stakes are high. Yes, it would be disappointing if he had reinterpreted or represented it as though he felt guilty and that is why he said it, as opposed to he had maintained it, but overall it wouldn’t fundamentally change the final outcome in consideration of everything in terms of the risk of reoffending. It would change the extent of lying he had engaged in.’
[104] Transcript, page 90, lines 7 - 19.
When cross-examined on her findings under the heading “Risk Assessment”, where she described the Visa Applicant's decision as being somewhat impulsive, opportunistic and immature, given that the Visa applicant was approximately 30 years old when he started engaging in this behaviour, Dr Yoxall’s response was:[105]
‘I thought about this, too. My immediate response is that I deal with people engaging in an immature and impulsive behaviour across the lifespan every day, so there is no hard and fast rule. We can see people in their 60s engaging in an immature behaviour. I hear what you are saying in terms of what we would expect of a 30-year-old male with all expected cognitive and emotional capacity. This isn’t sophisticated behaviour, what Mr Asare has engaged in. This isn’t a - and I don’t mean that with disrespect to Mr Asare, but it is not a highly sophisticated, highly organised, carefully thought through plan that he has executed. At least in terms of the information that I have in front of me, it seemed to be a bit of figuring out as he goes.
When I say it is immature, I guess we think of immature - that’s where the behaviour engaged in doesn’t take full consideration of consequences; doesn’t engage thinking that considers the broader responsibilities to one’s self and one’s family and to one’s community; and isn’t particularly sophisticated compared to what we might otherwise expect of someone that age. I have used the word “Immature” because it - if you read through that material and then realised he was 30-something years of age, you would be quite surprised because those are usually behaviours that you tend to see - I am talking very generally - and that sort of later adolescence impulsiveness - early 20s - and again, not being rude about gender, but we do see this is in the scientific literature that it tends to be more heavily in males, hence why we have a greater preponderance of males in our justice system, particularly in those age groups. Those are the reasons I called it immature.’
[105] Transcript, page 90, line 33 – page 91, line 10.

When questioned about whether the Visa Applicant’s conduct and immigration history between 2010 and 2014 were impulsive or planned, Dr Yoxall gave the following answer:[106]
‘I don’t recall him using the word “Impulsive”. I mean, he might have, but I don’t recall him using the word “Impulsive.” I think it definitely has more been my labelling of his descriptions of things as impulsive. I could be wrong; he could have said that he was impulsive. Certainly, from memory, when he first asked for the protection visa, he described that as being something that came to him, but yes.
I agree, impulsivity tends to be sort of “Shoot from the hip and don’t think before you act”. So it is all about that issue of stopping and thinking before doing. I still think there is a component of that with him and, again, I go back to this; there isn’t a grand master plan here. There isn’t a great level – there is a plan to stay in Australia, but there isn’t a grand master plan with different strategies all built into that plan that’s sophisticated. He’s essentially at every turn taken the next step that he thinks at that moment is most likely to keep him in Australia. And in that sense I think some of those decisions have been impulsive, in that there has not been a stopping, a thinking, a consideration of moving forward. And I think that has been opportunistic, because I don’t think he sat in Ghana and plotted this. I think where there was a potential fork in the road he made a decision, and then that kept leading him to different places; ultimately into the community where he didn’t know what to do with himself for three and something years, because he couldn’t fix it.
So none of this, again, I say, is sophisticated. And that’s why I used the word impulsive. But I did – I do agree, and I’ve pondered over the issue of, you know, he did talk about the fact that he created this quite elaborate story about the homosexual relationship, and then poured into that what that would potentially look like and why that would be an issue. So I would probably agree that the level of impulsivity in that was less than some of the other behaviours. But those are the reasons the words impulsive and opportunistic were used.’
[106] Transcript, page 91, line 27 – page 92, line 11.
In response to the question “Will he repeat the same set of breaches of expectations, guidelines, law, legislation?”. Dr Yoxall answered: [107]
‘No, because the outcome he was seeking – the goal he was directed towards – will have been achieved. Will he engage in that level of lies and deceit? I probably come back to the earlier point that I made around passage of time, maturation, living with the consequences of prior behaviours where – and I don’t have other information to indicate that he was a perpetual liar throughout the other years of his life. So it seems from what I’ve got in front of me that the lies were specifically around this issue of being able to be lawfully in Australia, the substantial serious lies. So it’s a bit of a – you know, it’s a bit of a challenging conundrum. But that’s where, that’s why I’ve made that comment.’
[107] Transcript, page 93, lines 16 – 26.
The Tribunal then questioned Dr Yoxall.
In response to the question: ‘Would it be fair to characterise the applicant that he had a goal of being in Australia and where he could have chosen an action that moved him closer to achieving that goal, he did so?’ Dr Yoxall answered: ’Yes.’
When questioned about LSI-R’s limitations, the following exchange took place with Dr Yoxall:[108]
[108] Transcript, pages 93-94, lines 41 -46.
‘Tribunal: what are the relative strengths and weaknesses in your mind of the level of service inventory tool that you applied?
W: I think it’s very important to say that it is a small component. I wouldn’t like it to be interpreted that it is substantial, because what we’re essentially doing is applying a risk of reoffending to somebody that doesn’t have a criminal history, which is the population that it is generally adapted for. Risk of reoffending broadly is a very very difficult area to predict because human behaviour is difficult to predict. And most of the measures that we have only really cover a few years, because the challenges of those – that research, is the following and tracking of people and recording their offending, as you can imagine. So it’s a really tough area. So we have to take it down in degrees. There’s a lot we don’t know. And as we move further down, there’s even less that we know.
And that starts right from the top, from the cultural differences - most of these measures are developed for North American males or British or European – and then we start working through all the layers that add noise to the final signal. So you’ve got the cultural piece; you’ve got the fact that he is being, we’re being, we’re asking the question of the likelihood of reoffending for somebody who hasn’t technically, who hasn’t actually offended technically in this country or that country; then we’ve got a bunch of other circumstances that play into it, in terms of personality, perceptions, age, maturity; and then we’re trying to say by the fact that he’s engaged in this lying in whatever size of lying or seriousness of lying, can that tell us anything about his likelihood to offend if he lives in Australia? So we’re actually getting down to very low levels of noise, if that makes sense.
Tribunal: No, no, I - - -?---
W: So if we base it on – yes, yes. So then if we base it on the fact that, you know, which way do you go? You actually don’t have much evidence that he’s going to offend, which is what I put the other way.
Tribunal: It goes both ways. It goes to my question, which was the strengths and weaknesses. And I guess, would it be fair to sum up, it’s an imperfect tool in this particular situation?
W: It’s always imperfect. It’s particularly imperfect with all of these variables.
Tribunal: Yes. And following on from that, did you allow for his history of impulsivity and lying when you applied the LSIR? And if so, how?
W: It doesn’t cover – it doesn’t cover it. No. Because it’s not actually talking about the whys, it’s talking about the actual weighted items in somebody’s history and current behaviour. So they don’t have an item for impulsivity. Some measures and certain types of offending, we do consider someone’s level of impulsivity. No, that would have – that part was more in the clinical assessment, and as I was describing before, what we generally know psychologically about maturation and impulsive behaviour and how that intersects with offending.
Tribunal: And building on your previous answer, is it fair to state that the LSI-R test really measures generalised recidivism or attempts to, rather than an offence or behaviour-specific recidivism?
W: Absolutely, that’s what it is. It’s a measure of general recidivism across a population.
Tribunal: Yes. And again acknowledging the cultural differences, which I’m going to class as noise as well in the signal - - -?
W: Absolutely’
Arising from this answer, Dr Yoxall then provided the following testimony:[109]
[109] Transcript, page 95, line 1 – page 96, line 5.
‘Tribunal: Did you consider separately testing Mr Asare for impulsivity or lying or a tendency to intentionally deceive?
W: I did consider it, and I didn’t do it. We do have impulsivity scales. We don’t tend to have scales for intention to deceive, but we certainly have measures of impulsivity. They tend to be – and look, I could have – they tend to be self report and they tend to be fairly high in face validity as well, which means I know what I am answering when I look at the item. So then you’re back to the same conundrum of relying on that person’s lens and the culture. But even compulsivity is considered differently in different cultures. You know, there’s cultural differences there. So yes, I could have, but I didn’t.
Tribunal: No, no, no criticism intended?
W: No, no, no.
Tribunal: I’m just sort of exploring what could – you’ve observed most of the points I have in my mind. There’s a high degree of uncertainty here and complicated by cultural factors. Now is it fair for me to observe that enduring personality traits like impulsivity are amongst some of the strongest individual predictors of recidivism? Or would that be - - -?
W: Enduring traits – enduring traits are, but it’s not as simple as just impulsivity, with the greatest respect. It’s usually – it’s one component of other enduring traits. And I guess that’s where my dilemma is. I’m not sure that it is an enduring trait. I think it’s a behaviour he engaged with substantially at that point of his life for a particular goal. But I don’t view – I don’t have evidence that it’s an enduring trait.
Tribunal: No. And I was making it as a general observation, not specific - - -?
W: Yes. Yes, it is. Yes.
Tribunal: Yes. For those same reasons?
W: Yes, yes.
Tribunal: My final – yes, my final question really goes to the discussion that you had with Ms Prasad about impulsivity. And it also goes to that first question I asked about his goal of being in Australia. Is there such a thing as contextual impulsivity? That one can be reasonable and considered in one’s thinking on everything until one gets to one’s idée fixe, I think the phrase is, and then suddenly impulsivity comes in the window?
W: Yes, certainly. And it all depends on someone’s emotion. We’ve all engaged in impulsive behaviour. If our emotions are very high, if we have – if we view something as highly valuable or something as high stakes that we’re desperate for, then our impulsivity can override our good thinking. Anybody that’s tried a diet will know that. And I know that might sound like I’m minimising, but I’m not.
Tribunal: No, no, no, it’s – you brought to mind what the British chief health officer said the other day, stop bringing cake to work is what most - - -?
W: Yes, please stop because I don’t have control. The piece that I – one of the valuable pieces here for me is the insight. Mr Asare is not leaving Queensland to live in New South Wales. He has grown up in a culture where there is a degree of desperation to get out. There was a massive amount of learning, a massive amount of modelling, a massive amount of sacrifices people have made to get out of that country to somewhere safe where they can have a chance at a life. And that’s the context I think the lying occurred in.’
In Mr Northam’s re-examination, he sought to clarify the risk of re-offending with Dr Yoxall:[110]
‘Northam: If I might take you to page 23?
W: Yes.
Northam: And that would be the third paragraph, where you say:
No risk assessment will result in a zero or no risk of offending. This is because human behaviour is complex, and given a certain set of circumstances and variables, any and all individuals will present with some level of risk offending in some manner.
Northam: Would you agree that’s applicable in this condition? Any further comments on that?
W: Very much so. I don’t think I could add any more to that. I think that’s exactly applicable in this situation.’
[110] Transcript, page 96, line 17 – line 29.
Debbie Stanford
The witness is the Applicant’s sister and the Visa Applicant’s sister-in-law.
She provided her views on the Visa Applicant, including her belief that he is of good character, and the discussions between herself, the Applicant and the Visa Applicant regarding the possible donation of an egg for IVF treatment.
The witness stated that she was aware that the Visa Applicant had arrived on a passport that was not his own, that he had decamped from immigration detention without permission amid the background of alleged assaults and threats, but that she did not consider him to be a danger to the Australian community.
In cross-examination she stated that she did not believe that the Visa Applicant had worked between his absconding from immigration detention and his return to immigration detention.
THE TRIBUNAL’S assessment OF THE ORAL TESTIMONY
The Tribunal found the Visa Applicant’s oral testimony, while straightforward on non-contentious matters, to be evasive, discursive and self-favouring on certain key points such as the alleged assaults in Maribyrnong Immigration Detention Centre.
The Applicant’s oral testimony can be characterised as straightforward, honest and helpful in terms of assisting the Tribunal in elucidating evidence and understanding the Visa Applicant’s immigration history. The Applicant also spoke strongly in favour of the Visa Applicant’s honesty in dealing with her. She is to be commended for her evidence.
The oral testimony of Frederick Agyei, Pastor Davis Freeman, John Kofibaa Apea and Eric Amoah Peprah was useful in creating a honest picture of the Visa Applicant but it is telling for the Tribunal that none of these witnesses directly addressed the Visa Applicant’s deceptive and dishonest conduct and behaviour in Australia.
The oral testimony of Lesley Elizabeth Johnson and Debbie Stanford buttressed the Applicant’s testimony. It is noteworthy that Ms Stanford believes the Visa Applicant did not work between January 2011 and July 2014.
Dr Yoxall’s testimony, in conjunction with her 19 April 2022 report, was of significant assistance to the Tribunal in addressing the issues before it. Her professionalism, honesty and expertise were self-evident.
The Tribunal will now apply its consideration of the oral testimony, together with the documentary evidence and both parties’ submissions to addressing the key issues in this matter.
The Character Test
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 reflected with approval upon the reasoning in Viane[111] and at [27] identified the following principles as relevant to the statutory task conferred by s 501CA(4) of the Act:
‘(1)      If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2)       The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3)       The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4)       However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5)       Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6)       If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…’
[111] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
The Tribunal will consider the character test with reference to the following:
(a)From Section 1 of Annex A of the Direction:
‘(1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decisionmaker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
(2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
(3) Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test….’
(b)Section 501(6)(c)(ii) of the Act requires the decision-maker to have regard to the Visa Applicant’s past and present general conduct and then determine as a fact whether that person is not of good character.[112]
[112] Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 at [49].
(c)Further guidance is provided in paragraph 5 of Section 2 - Application of the Character Test, of Annex A of the Direction:
Paragraph 5
Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))
(1)       A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.
(2)       The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Minister Immigration and Multicultural Affairs [2002] FCAFC 440 at [33],
(3)       In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.
a)In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘the words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.’
(4)       In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
a) In Godley, Lee J went on to say ‘For a finding to be made under section 501 (6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term ‘present criminal conduct’ is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’.
‘Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
…….
Paragraph 5.2
Past and present general conduct
(1) The past and present general conduct provision allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence.
a) in considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.”
(d)Unless the decision-maker makes a finding of fact that the Visa Applicant is not of good character, the Visa Applicant passes the character test.[113]
(e)The decision-maker must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone.[114]
(f)Before past and present general conduct may be taken to reveal indicia that the Visa Applicant is not of good character, continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances, isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.[115]
(g)The Macquarie Dictionary defines ‘continuing’, when used as an adverb, as ‘having the parts in immediate connection, unbroken’.
(h)The Full Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195 rejected the notion that a person’s “general conduct” could not encompass isolated acts, saying at [195]:
‘… We do not think there is any warrant for extracting, from the broad word ‘general’, a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person’s criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.’
(i)The Court in Baker also said that the expression "good character" in the subsection was correctly explicated by what Justice Lee had said in Irving v Minister for Immigration, Local Government& Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:
‘… the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion…’
[113] Op cit, at [50].
[114] Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at page 197 and Godley at [51].
[115] Godley at [56].
The Parties’ Submissions

The Applicant submits that there is nothing in the evidence before the Tribunal to enliven this paragraph, while the Respondent is silent on this point.
Conclusion: Primary Consideration 2: Family violence committed by the non-citizen
This primary consideration is not relevant.
Primary consideration 3: Best interests of minor children in Australia affected by the decision.
Paragraph 8.3 of the Direction requires decision-makers to determine, where relevant, if the visa refusal is in the best interests of any minor children in Australia.
This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided.
If there are two or more relevant children, the best interests of each child affected by the decision whether to refuse or grant the visa should be given individual consideration, to the extent that their interests may differ.[137]
[137] Direction, para 8.3(3).
In considering the best interests of the child, the Direction requires the following factors at paragraph 8.3(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant submits that there is nothing in the evidence before the Tribunal to enliven this paragraph, while the Respondent is silent on this point.
Conclusion: Primary Consideration 3: Best interests of minor children in Australia affected by the decision
This primary consideration is not relevant.
Primary consideration 4: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[138]
[138] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[139]
[139] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[140]
[140]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.4(1), the Tribunal now considers the guidance provided by Principles 5.2(2), (3), (4) and (5) of the Direction:
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The Direction provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the strain community.
Paragraph 8.4(4) of the Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated [in paragraph 8.4 (1) – (3 from ) of the Direction], without independently assessing the community's expectations in the particular case.’
With reference to the propositions in paragraph 8.4(1) of the Direction, the Tribunal understands this sub-paragraph’s framework as:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
obreached the expectation in the immediately preceding sub-paragraph (a); or
othere is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
The Applicant contends that, while the Australian community’s expectations will generally weigh against an applicant as the expectations tend to be written in absolutes, where the non- citizen’s conduct is not “very serious”, and where the risk of re-offending is “very low”, this factor should not weigh heavily against the Visa Applicant. Additionally, the evidence supports the view that the Visa Applicant’s behaviour is such, when considered in its totality, shows he is a peaceful person who has never offended, and therefore poses no realistic risk to the Australian community.[141]
[141] Exhibit 4, paragraphs 24-25.
The Respondent contends that the expectations of the Australian community weigh heavily in favour of refusing to grant a visa to the Visa Applicant. In particular, the Visa Applicant's conduct represents a contempt and disregard for Australian law and undermines the integrity of the immigration program. The Visa Applicant's conduct raises serious character concerns, and the Australian community would expect that his visa application should be refused.
The Tribunal is satisfied this Visa Applicant has breached the Australian community’s expectations by his conduct and actions between January 2010 and July 2014.
Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to enter Australia.
While the Visa Applicant may not have committed any of the offences stipulated in the paragraph 8.4(2)’s categories (a)-(f) (inclusive) the Tribunal has found that he failed the character test, that his other actions and conduct were serious and that he represents ‘a risk’ which the Tribunal would characterise as small but a material risk.
The remaining question is whether there are any factors modifying the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) and (5) of the Direction. In summary, the relevant principles are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;
(c)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life; and
(d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.
Sub-paragraph (a) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
The Visa Applicant does not currently hold a visa.
In the period between January 2010 and July 2014 the Visa Applicant’s actions and conduct were sufficiently serious for the Tribunal to find above that he failed the character test, enlivening sub- paragraphs (a) and (b) in terms of the Australian community’s low tolerance for such conduct.
Addressing sub-paragraph (c), the Visa Applicant has not lived here for a significant proportion of his life (some four and half years out of forty-three years).
Addressing sub-paragraph (d), the Visa Applicant’s conduct was serious and there is a risk that he will re-offend if admitted into Australia.
Conclusion: Primary Consideration 4: Expectations of the Australian community
Primary Consideration 4 weighs strongly and determinatively for affirming the delegate’s 30 December 2021 refusal to grant the Visa Applicant a visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal will now consider each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration(a): International non-refoulement obligations
Paragraph 9.1 of the Direction provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2)In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6)It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.
Conclusion Other Consideration (a): International non-refoulement obligations

This consideration is not enlivened as the Visa Applicant resides in Ghana. The Respondent’s submission is silent on the impact of this other consideration.
Considering the above, the Tribunal finds this Other Consideration (a) as not relevant.
Other Consideration(b): Extent of impediments if removed
Paragraph 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    The non-citizen’s age and health;
b)    Whether there are substantial language or cultural barriers; and
c)    Any social, medical and/or economic support available to them in that country.
Conclusion: Other consideration (b) Extent of impediments if removed
The Applicant contends that this is not a relevant factor in the present case as the Visa Applicant resides in Ghana. The Respondent’s submission is silent on the impact of this other consideration.
Considering the above, the Tribunal finds this Other Consideration (b) as not relevant.
Other consideration (c): Impact on victims
Paragraph 9.3(1) of the Direction states:
‘Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.’
Conclusion: Other consideration (c): Impact on victims
The Applicant contends that this Other Consideration (c) is not relevant in this matter. The Respondent’s submission is silent on the impact of this other consideration.
Considering the above, the Tribunal finds this Other Consideration (c) as not relevant .
Other consideration (d): Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to an applicant's links to the Australian community.
Paragraph 9.4.1 Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction states:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s 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.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
In addressing paragraph 9.4.1, the Tribunal observes that it refers only to cancelling a non-citizen’s visa or revoking the mandatory cancellation of a visa.
Consequently, this paragraph does not apply to refusals to grant visas considered under Section 501(1) of the Act.
The Tribunal finds that this element of Other Consideration (d) is not relevant.
Findings: Other Considerations
The following summarises the respective weights the Tribunal has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: is not relevant;
(b)extent of impediments if removed: is not relevant;
(c)impact on victims: is not relevant; and
(d)links to the Australian community: is not relevant.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in paragraph 9 of the Direction.[142]
[142] Per paragraph 9(1) of the Direction and Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
The Tribunal will now consider the potential impact of a decision whether or not to affirm the delegate’s 30 December 2021 refusal to grant the Visa Applicant a visa on the Applicant and her family.
The Visa Applicant's wife (being the Applicant), mother-in-law and sister-in-law (who has four children) reside in Australia.
The Visa Applicant resided in Australia for almost five years after arriving as an adult.
The Tribunal has found that the Visa Applicant engaged in conduct contrary to Australia's immigration laws for much of the time he was in Australia.
The Visa Applicant has developed ties to the Australian community particularly through his family, friends and religious activities.
The Applicant contends that the 30 December 2021 refusal to grant a visa to the Visa Applicant has had a negative effect on his wife, the Applicant.
The Applicant further contends that a character refusal of the visa would likely pose an insurmountable block to the Visa Applicant being granted any visa for Australia at any time in the near future. This would likely damage the marital relationship of almost 8 years of the Applicant and her husband (being the Visa Applicant), given there would then be no assurance that they could live together in Australia at any point in the future.
The Respondent concedes that the Visa Applicant’s links to the Australian community can be given some weight against refusing to grant the Visa Applicant a visa. However, the Respondent contends that this consideration should not attract significant or overwhelming weight in the present case, and that it does not outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community, which weigh heavily in favour of refusal.
The Tribunal acknowledges that a refusal to grant a visa to the Visa Applicant will have a significant and adverse impact on the Applicant and, to lesser degrees, the Applicant’s mother, sister and friends who have provided references.
Conclusion: Additional consideration
The Tribunal finds that this Additional Consideration weighs moderately in favour of setting aside the delegate’s decision under review.
CONCLUSION
The Tribunal found that the Visa Applicant does not pass the character test.
Consequently, the discretion in Section 501(1) of the Act to refuse to grant the Applicant a visa is enlivened.
The Tribunal finds as follows:
a.Primary Consideration 1- protection of the Australian community from criminal or other serious conduct:
i.this consideration weighs in favour of affirming the delegate’s decision to refuse to grant the Visa Applicant a visa.
b.Primary Consideration 2- whether the conduct engaged in constituted family violence:
i.this consideration is not relevant .
c.Primary Consideration 3- the best interests of minor children in Australia:
i.this consideration is not relevant .
d.Primary Consideration 4 – Expectations of the Australian Community:
i.this consideration weighs strongly and determinatively in favour of affirming the delegate’s decision to refuse to grant the Visa Applicant a visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, together with the additional consideration favours on balance affirming the delegate’s decision to refuse to grant the Visa Applicant a visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

I certify that the preceding two hundred and eighty-five paragraphs (285) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

.......................[SGD]...................................
Associate
Dated: 23 February 2023

Dates of hearing: 18, 19 & 25 January 2023 and 3 February 2023

Solicitors for the Applicant:
Mr Northam (Northam Lawyers)

Solicitors for the Respondent: Ms Prasad (Minter Ellison Lawyers)
Annexure A - Exhibit Register

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents

(G1-G54, paged 1-243)

R

Various

15 Feb 2022

2

Supplementary G Documents

(S1, paged 1-128)

R

Various

3 May 2022

2.1

Further Supplementary G Documents

(FS1-FS9, paged 1-265)

R

Various

11 May 2022

3

Further Supplementary G Documents

(S1, paged 1-197)

R

Various

7 Jun 2022

4

Statement of Facts, Issues and Contentions

A

22 Apr 2022

22 Apr 2022

5

Statement of Facts, Issues and Contentions

R

3 May 2022

3 May 2022

6

Report of Dr J Yoxall (Psychologist)

A

19 Apr 2022

22 Apr 2022

7

Applicant’s cover email sent on 19 January 2023

A

19 Jan 2023

19 Jan 2023

8

Mrs Asare’s email to Self with Partner Visa Handbook

A

17 June 2014

19 Jan 2023

9

Letter from high commissioner regarding passport

A

30 June 2014

19 Jan 2023

10

Mrs Asare Call to MAS Migration Agency

A

17 June 2014

19 Jan 2023

11

Foster Kofi Asare Appiah’s Birth Certificate

A

20 May 2014

25 Jan 2023

[2023] AATA 251

23 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Dates of hearing:	18, 19 & 25 January 2023 and 3 February 2023
Solicitors for the Applicant:	Mr Northam (Northam Lawyers)
Solicitors for the Respondent:	Ms Prasad (Minter Ellison Lawyers)

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (G1-G54, paged 1-243)	R	Various	15 Feb 2022
2	Supplementary G Documents (S1, paged 1-128)	R	Various	3 May 2022
2.1	Further Supplementary G Documents (FS1-FS9, paged 1-265)	R	Various	11 May 2022
3	Further Supplementary G Documents (S1, paged 1-197)	R	Various	7 Jun 2022
4	Statement of Facts, Issues and Contentions	A	22 Apr 2022	22 Apr 2022
5	Statement of Facts, Issues and Contentions	R	3 May 2022	3 May 2022
6	Report of Dr J Yoxall (Psychologist)	A	19 Apr 2022	22 Apr 2022
7	Applicant’s cover email sent on 19 January 2023	A	19 Jan 2023	19 Jan 2023
8	Mrs Asare’s email to Self with Partner Visa Handbook	A	17 June 2014	19 Jan 2023
9	Letter from high commissioner regarding passport	A	30 June 2014	19 Jan 2023
10	Mrs Asare Call to MAS Migration Agency	A	17 June 2014	19 Jan 2023
11	Foster Kofi Asare Appiah’s Birth Certificate	A	20 May 2014	25 Jan 2023