Kuffour and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1424

Kuffour and Minister for Immigration and Border Protection (Migration) [2017] AATA 1424 (5 September 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4258

Re:Brenda Kuffour

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:The Hon. Justice Stevenson, Deputy President

Date:5 September 2017

Place:Sydney

The Tribunal decides to affirm, pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the delegate of the Minister made on 2 August 2016 whereby the applicant was refused a Partner (Provisional) (Class UF) visa.

...............[sgd].........................................................

The Hon. Justice Stevenson, Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – partner visa refusal – failure to pass the character test – repeated dishonest and deceitful tactics used in order to secure entry into Australia – primary considerations – protection of the Australian community – expectations of the Australian community – impact on family members – Tribunal finds that the protection of the Australian community and the expectations of the Australian community outweigh the best interests of minor children in Australia and the impact on family members – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)

Migration Act 1958 (Cth) s 501(1)

SECONDARY MATERIALS

Direction No. 65 under s 499 of the Migration Act 1958 (Cth)

REASONS FOR DECISION

The Hon. Justice Stevenson, Deputy President

5 September 2017

THE PROCEEDINGS

1. Mrs Brenda Kuffour is the applicant on behalf of Mr Joel Kuffour (“the applicant”) for review of a decision made on 2 August 2016 by a delegate of the Minister for Immigration and Border Protection (“the Minister”), pursuant to section 501(1) of the Migration Act 1958 (Cth) (“the Act”) for refusal of a Partner (Provisional) (Class UF) visa. The delegate expressed this decision as follows:

   Mr KUFFOUR has not satisfied me that he passes the character test. I have decided to exercise my discretion under subsection 501(1) of the Act to refuse his application for a visa. I hereby refuse his application for a Partner (Provisional) (Class UF) visa. My reasons for this decision are set out in the attached Statement of Reasons.

2. In the present proceedings, the applicant conceded that he does not pass the character test for the purposes of section 501(1). A document dated 6 September 2016, prepared by the applicant’s representative and submitted to the Tribunal, stated that “the applicant admits that he does not pass the character test due to his past breaches of immigration law”. The applicant’s Statement of Facts, Issues and Contentions indicated that “the visa applicant admits that he has breached migration laws and has lied to the department by providing false and misleading information”.

3. In his Statement of Facts, Issues and Contentions, the applicant admitted to the following breaches of migration law:

   23.      The visa applicant has admitted to the following breaches as follows:

   a.entering Australia in 2004 under false name ( Kwaku Oduro is in doubt);

   b.statement of fact, no visa has been issued to Andrews Osei Banahene;

   c.        lying on his 2008 prospective marriage application,

   d.denying that Andrews Osei Banahene and the visa applicant were the same person.

4. In cross-examination the applicant made the following admissions:

   ·in 2004 he was aware that he had been refused a visa for entry to Australia but nevertheless travelled to this country from Ghana;

   ·he remained in Australia for three years and then left this country, “using someone else’s identity”;

   ·in a statement dated 23 November 2007 (T documents pp 245-6) he lied in representing that he met Mrs Brenda Kuffour in Ghana in approximately 1991, the truth being that they came into contact each other for the first time in 2005 in Australia;

   ·in 2008 he “lied to the authorities” in the context of an application for a prospective marriage visa;

   ·in 2008 he applied for a prospective marriage visa on the basis of “fabricated information”;

   ·he “misled” New Zealand immigration authorities when he applied for a visitor visa for that country in 2009;

   ·New Zealand immigration officials advised him that he would face prosecution for “identity fraud” unless he left that country.

5. These admissions are sufficient to satisfy me, independently of the concession made by the applicant, that he does not pass the character test for the purposes of section 501 of the Act. Accordingly, the question for determination in the present proceedings was set out correctly as follows in the respondent’s Statement of Facts, Issues and Contentions:

   3.The issue in this proceeding is therefore whether it is the correct or preferable decision to exercise the discretion in s 501(1) of the Act to refuse to grant the Visa Applicant the Visa. Once the discretion in s 501(1) of the Act is enlivened, the decision-maker must comply with Direction No. 65 (Direction) in considering whether to exercise the discretion (see s 499 of the Act, under which the Direction was made).

   BACKGROUND

6. This background material is drawn largely from the T Documents which were in evidence as Exhibit 4.  I have included also aspects of the oral evidence which was given by the applicant, when he was cross-examined by telephone from Ghana.

7. The applicant was born on 6 June 1978 in Ghana and is presently aged 39 years.  He married Mrs Brenda Kuffour on 25 January 2009 in Ghana.  They have two children:

   ·Chloe Evangeline Kuffour born on 14 June 2007 (10)

   ·Charissa Yaa Kuffour born on 3 March 2011 (6)

   Chloe and Charissa were born in Australia and New Zealand respectively.

8. Following his birth, the applicant was known as Andrews Osei Banahene.  He changed his name to Joel Kwabena Kuffour in 2008.  On 24 October 2013 the applicant swore a statutory declaration in the High Court of Judicature in Ghana, whereby he stated that he would be known henceforth as “Joel Kwabena Kuffour”.

9. In 2004 the applicant entered Australia in circumstances which, on his version of events, were orchestrated by his uncle. In cross-examination he conceded that he used the identity “Kwaku Oduro” to work in Australia, again in circumstances which were arranged by his uncle.  It may be that he entered Australia using the name “Kwaku Oduro”.  After three years he left this country, “using somebody else’s identity” by his own admission.

10. On 10 January 2008 the applicant lodged an application for a Prospective Marriage visa at the Australia High Commission in Nairobi, Kenya.  He attended an interview at the High Commission on 12 March 2008.  By his own admission, he was untruthful in the contents of both his application and this interview.  In light of his concession to that effect in cross-examination, it is unnecessary that I now set out details of this deceit and dishonesty on the part of the applicant.

11. On 9 October 2008 the applicant was refused a Prospective Marriage visa.  In October 2009 he entered Papua New Guinea, where he stayed until February 2010.  He spent the period 28 February 2010 until 2 March 2010 in Fiji and then travelled to New Zealand.  He remained in New Zealand from 2 March 2010 until 2 March 2011, pursuant to a Visitor visa.  New Zealand immigration officials extended his visa after 2 March 2011, for the shorter of a period of six months or a determination of his application for a work visa.

12. On 28 June 2013 the applicant lodged an application for a Provisional Partner visa with the Australian Consulate-General in Auckland.  A letter dated 19 July 2013 to the applicant indicated that this application would be transferred to the Australian High Commission in Nairobi.

13. On 21 October 2013 the applicant was interviewed at the Australian High Commission in Nairobi.  He said that he entered Australia in 2004 using the name Kwaku Oduro, which identity was arranged by his uncle.  He said also that the left Australia using a different passport which was provided to him by his uncle.  He admitted that he had lied in his Prospective Marriage visa application in 2008.  He admitted further that he was refused a New Zealand visa because he failed to disclose his aliases and earlier visa refusals by Australian authorities.

14. On 1 August 2014 an official of the Department of Immigration and Border Protection notified the applicant of the Minister’s intention to consider refusal of his application for a Partner (Migrant) (Class CB) visa.  In August 2014 the applicant’s migration agent made representations to the department.  The visa application was refused on 2 August 2016 and, on 17 August 2016, the applicant filed an application for review of that decision.

15. The applicant has established a church in Ghana and is occupied with the duties of a minister.  He has been separated from his wife and daughters for several years.

    CONSIDERATION

16. For the purposes of the exercise of the discretion enlivened pursuant to section 501 of the Act, I will consider the evidence within the framework of Ministerial Direction No. 65. This Direction contains three primary and four additional considerations which must be taken into account, where relevant, in the exercise of that discretion.

17. Paragraph 11 of the Direction provides as follows:

    11.      Primary considerations – visa applicants

    (1)In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australia community from criminal or other serious conduct;

    b)        The best interests of minor children in Australia;

    c)        Expectations of the Australian Community.

    Primary consideration 1 – Protection of the Australian community

18. Paragraph 11.1 of the Direction provides as follows:

    11.1     Protection of the Australian community

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

19. Paragraph 11.1.1 of the Direction sets out a number of factors which must be taken into account in a consideration of the nature and seriousness of the conduct of a non-citizen.  Relevantly for present purposes, this paragraph provides as follows:

    11.1.1  The nature and seriousness of the conduct

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

    …

    d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

    …

    h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

20. I have referred above to the applicant’s repeated acts of deceit and dishonesty in his dealings with Australian and New Zealand immigration authorities.  I have outlined his concessions to that effect in cross-examination.  I am comfortably satisfied that the conduct of the applicant was “serious” for the purposes of the Direction.  I am satisfied that the applicant engaged in this pattern of dishonest and deceitful conduct in order to secure a benefit for himself, that being residence in Australia.

21. Paragraph 11.1.2 addresses the risk to the Australian community should a non-citizen commit further offences or engage in other serious conduct.  This paragraph provides as follows:

    11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

    (2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.information and evidence from independent and authoritative sources on the likelihood of the
    non-citizen re-offending; and

    ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

    iii.        the duration of the intended stay in Australia.

    (4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

22. The applicant maintained that he has acknowledged the wrongfulness of his past conduct and offered himself to the Tribunal as a “reformed character”, to adopt the words of his representative in final submissions.  The applicant claimed that he is remorseful for his past actions.

23. The reality is, however, that there was no independent evidence to corroborate the applicant’s claims that he has turned away from his previous pattern of acts of deceit and dishonesty committed to secure an advantage for himself. I cannot safely conclude that the applicant will not engage in similar conduct, if he becomes a member of the Australian community.  There are many potential circumstances in which it is conceivable that the applicant may engage in such behaviour, for example, in applications for credit facilities, a driver’s licence, and leases of accommodation.

24. The acts of dishonesty and deceit perpetrated by the applicant occurred over a period of several years.  He did not commit an isolated act of deception but, rather, engaged in a pattern of dishonest conduct.

25. I am satisfied that the applicant constitutes an unacceptable risk of harm to individuals, groups and institutions in the Australian community.  In my assessment, risk to the Australian community weighs in favour of a decision to affirm the refusal of a visa to the applicant.

    Primary consideration 2 – Best interests of minor children in Australia

26. Paragraph 11.2 of the Direction provides, inter alia, as follows:

    (1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

27. The children of the applicant and Ms Brenda Kuffour are 10 and 6 years of age.  Accordingly, this consideration is relevant for present purposes.

28. The following proper concessions were made on behalf of the Minister:

    44.The Minister accepts the Visa Applicant’s claims that he plays a significant role in supporting and raising his children.

    45.In these circumstances, the Minister accepts that refusal of the Visa Applicant’s visa is contrary to the best interests of his children and that this consideration weighs in favour of a decision to exercise the discretion not to refuse the visa.

29. On the other hand, nothing in the evidence indicated that there exists any impediment to Mrs Brenda Kuffour and the two children joining the applicant in Ghana.  It is thus open to the applicant and his wife to reconstitute their family unit in their country of origin.  I will take into account the fact that this option is available to the applicant and his family.

    Primary consideration 3 – Expectations of the Australian Community

30. Paragraph 11.3 of the Direction provides as follows:

    11.3     Expectations of the Australian Community

    (1)The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.  Decision-makers should have due regard to the Government’s views in this respect.

31. In my view, the Australian community would entertain a reasonable expectation that a person who wishes to enter and settle in this country would do so on the basis of an honestly formulated application process. It is evident that the applicant has repeatedly adopted dishonest and deceitful tactics in order to secure his objective of entering Australia.  I conclude that the Australian community would have a reasonable expectation that his application be refused, given the seriousness and extent of his past conduct.

    Other considerations

32. Paragraph 12 of the Direction provides as follows:

    12.      Other considerations – visa applicants

    (1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant.  These considerations include (but are not limited to):

    a)        International non-refoulement obligations;

    b)        Impact on family members;

    c)        Impact on victims;

    d)        Impact on Australian business interests.

33. As submitted on behalf of the Minister, the only relevant matter here is “the impact on family members”.  I am prepared to assume that there would be an adverse impact on Mrs Brenda Kuffour of a visa refusal.  I have had regard to the contents of the statutory declaration of her mother, Ms Kwadwo Adu-Boateng, dated 19 January 2017 (Exhibit 1).  She stated that Mrs Brenda Kuffour is in a situation of considerable stress, without the support of her husband.  According to Ms Adu-Boateng, Mrs Brenda Kuffour struggles with her responsibilities for the care of the children and her course of part-time study in the nursing field.

34. The following concessions were made properly on behalf of the Minister:

    53.… the Minister accepts that the Visa Applicant’s children’s best interests would be served if the Visa Applicant was to join them in Australia.  It is also accepted that the Visa Applicant’s wife’s best interests will be served with him in Australia.

    …

    55.In light of this, the Minister accepts that this consideration does weigh in favour of the Tribunal exercising its discretion to not refuse the visa, however not to the extent that it outweighs the Visa Applicant’s history of immigration breaches.

    CONCLUSION

35. I conclude that the protection of the Australian community (Primary Consideration 1) and the expectations of the Australian community (Primary Consideration 3) outweigh the best interests of minor children in Australia (Primary Consideration 2) and the impact on family members (other consideration 12(b)). Accordingly I am satisfied that the correct or preferable decision is that I affirm, pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision of the delegate of the Minister made on 2 August 2016 whereby the applicant was refused a Partner (Provisional) (Class UF) visa.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Justice Stevenson, Deputy President

...............[sgd].........................................................

Associate

Dated: 5 September 2017

Date(s) of hearing:	3 April 2017
Advocate for the Applicant:	Mr T Assante, Pace Migration & Integrated Services
Solicitors for the Respondent:	Ms P Richards, Clayton Utz