Mensah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 278

Mensah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 278 (21 February 2020)

Division:GENERAL DIVISION

File Number(s):      2017/5307

Re:Oko Mensah

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:21 February 2020

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for review of decision to revoke Applicant’s Australian citizenship – where Applicant convicted of offences under Citizenship Act 2007 (Cth) and Migration Act 1958 (Cth) – whether contrary to public interest for Applicant to remain an Australian citizen – whether discretion not to revoke citizenship should be exercised – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 34, 50

Migration Act 1958 (Cth) ss 35, 234, 501, 501CA

REASONS FOR DECISION

Senior Member A Poljak

21 February 2020

1. The applicant first arrived in Australia on 19 February 2003 as a holder of a combined subclass 309/100 spouse visa using the alias “Nii Odai Frank Quaye” (“First Spouse Visa”). The First Spouse Visa was cancelled on 13 April 2004 on the grounds that he was no longer in a relationship with the sponsor of his visa.

2. On 1 November 2005, the applicant applied for a second combined subclass 309/100 spouse visa using the alias “Oko Mensah” born 14 May 1967 (“Second Spouse Visa”). This application had a different sponsor to the First Spouse Visa. On 30 July 2006, the applicant was granted a Class UF Provisional Resident P620 Sub Class 309 visa that permitted him to travel to, and remain in, Australia until his permanent visa application was decided. He subsequently arrived in Australia on 28 December 2006. On 2 January 2008, the applicant was granted a Class BC Resident Sub Class 100 visa that permitted him to remain in Australia indefinitely. 

3. On 7 June 2011, the applicant applied for Australian Citizenship by conferral. The applicant acquired Australian citizenship on 13 September 2011.

4. On 5 May 2015, the applicant entered a plea of guilty and was convicted of two counts of the offence “deliver, or cause to be delivered, to an officer a document containing false information” pursuant to s 234(1)(c) of the Migration Act 1958 (Cth) (“the Migration Act”) (“migration offences”). The offences occurred between 13 May 2005 and 18 December 2007. The applicant also entered a plea of guilty and was convicted of the offence “makes false statements or representation” pursuant to s 50(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”). The offence was committed on 4 June 2011 (“citizenship offence”).

5. On 26 April 2016, the applicant was convicted of an Aggravated Sexual Assault of a Minor offence that occurred in December 2012 (“Aggravated Sexual Assault of a Minor offence”). He was sentenced to six years imprisonment.

6. On 15 August 2017, the applicant was notified that his Australian citizenship had been revoked. He was requested to surrender the notice stating he was an Australian citizen by 12 September 2017 and, if held, to return his current Australian passport. This is the decision under review in these proceedings (“decision under review”).

   THE APPLICANT’S PERSONAL HISTORY AND MIGRATION AND CITIZENSHIP OFFENCES

7. The applicant’s real name, date of birth and place of birth remains unresolved. Documents are available to support two separate identities.

8. Some of the details of the applicant’s personal history can be found in departmental records. The applicant also provided some details about his personal history at hearing. The following outlines the applicant’s personal and migration history as accurately as possible:

   (a)The applicant was born in Ghana, West Africa. He said his name at birth was “Nii Odei Quaye”.

   (b)The applicant said at hearing that he has fathered eight Ghanaian children. Departmental records show that the dates of birth of the children range from February 1991 to August 2003.

   (c)On 12 February 2002, the applicant married Judith Anne Jullen, an Australian citizen and sponsor of the applicant’s First Spouse Visa. They met when Ms Jullen visited Ghana as a tourist in 2000. Following their marriage, Ms Jullen returned to the United Kingdom (UK), unaccompanied, to process a visa application for the applicant to enter the UK. Once the visa was granted, the applicant joined Ms Jullen in the UK in September 2002. On 11 October 2002, the applicant applied for the First Spouse Visa, which was granted on 23 October 2002 and the applicant arrived in Perth, Australia on 19 February 2003.

   (d)In the First Spouse Visa application, the applicant failed to disclose he had any children under the age of 16 years.

   (e)On 17 March 2003, the applicant’s marriage to Ms Jullen showed signs of trouble. The Department was notified the relationship had failed on 27 March 2003.

   (f)The First Spouse Visa was cancelled on 13 April 2004. Following the cancellation decision, the applicant remained unlawfully in Australia and was detained on 20 April 2004. He was held in the Western Australia Perth Immigration Detention Centre until his removal from Australia on 17 May 2004. The applicant incurred a debt to the Commonwealth totalling $14,911.20 for his detention and removal costs. He was subject to a three year exclusion period prohibiting him from applying for a visa or entering Australia due to the outstanding debt (“exclusion period”).

   (g)Upon his return to Ghana the applicant said he lived with his sisters at his mother’s house. He was introduced to Anita Jean Baines, an Australian citizen, via telephone. The details of their introduction remain unclear. Ms Baines provided the applicant with financial support despite not being in a relationship with him at that time.

   (h)On 1 December 2004, Ms Baines and her daughter visited the applicant in Ghana and stayed with him for three months. On 17 December 2004, the applicant and Ms Baines were married in Ghana.

   (i)On 1 November 2005, the applicant lodged the application for the Second Spouse Visa. The applicant said at hearing that the name used in the application, Oko Mensah, was made up from two other names; “Mensah” being his mother’s maiden name. The applicant said Ms Baines made up his date of birth. In the application for the Second Spouse Visa, the applicant failed to disclose his previous alias; his former adverse migration history; that he had any children; and that he was, at the time, subject to a three year exclusion period from Australia.

   (j)On 20 February 2006, the applicant attended an interview with immigration officers at the Australian High Commission Nairobi. During the interview, the applicant gave a number of untruthful statements. Significantly, he falsely stated that he did not have any children; that this was the first time he had applied for a visa; and that he had never been previously married. 

   (k)On 30 July 2006, the temporary component of his visa application was granted and he arrived in Australia on 28 December 2006. On 2 January 2008, the applicant was granted the Second Spouse Visa which allowed him to remain in Australia permanently.

   (l)On 7 June 2011, the applicant lodged an application for Australian citizenship in which he failed to disclose his previous alias; his former adverse migration history; and that he had any children. The applicant acquired Australian citizenship by conferral on 13 September 2011.

   (m)In July and August 2012, the applicant applied to sponsor his eight Ghanaian children for Australian visas. DNA testing was conducted on all eight children during the visa application process, which confirmed that seven of the child visa applicants were the applicant’s biological children. One was not, and the visa was refused. Departmental records show that seven of these children were granted permanent resident subclass 101 child migrant visas. The children arrived in Australia in 2013.

   (n)Ms Baines and the applicant separated on 28 February 2014.

   RELEVANT LEGISLATIVE PROVISIONS

9. A decision to revoke a person’s citizenship by conferral occurs under s 34(2) of the Act. Subsection 34(2) provides:

   (2)  The Minister may, by writing, revoke a person’s Australian citizenship if:

   (a)  the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and

   (b)  any of the following apply:

   (i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

   (ii)  the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);

   (iii)  the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);

   (iv)  the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and

   (c)  the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

10. Subsection 34(6) provides:

    (6)  For the purposes of this section, a person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud if and only if:

    (a)  at any time, the person was convicted of an offence against:

    (i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008), of the Migration Act 1958; or

    (ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;

    that the person committed at any time before the Minister gave the approval; and

    (b)  the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.

    [emphasis in original]

    ISSUES

11. It is not in dispute that s 34(2)(a) of the Act is satisfied. The applicant acquired Australian citizenship by conferral on 13 September 2011.

12. The parties agree that s 34(2)(b)(i) of the Act is satisfied. On 5 May 2015, the applicant entered a plea of guilty and was convicted of a citizenship offence under s 50(1) of the Act. The offence related to his application for Australian citizenship in which he falsely disclosed his identity as “Oko Mensah” with a birth date of 15 May 1967. He also failed to disclose that he had previously been known as “Nii Odai Frank Quaye”.

13. Accordingly, the issues for determination in these proceedings are:

    (a)Whether, for the purposes of s 34(2)(c) of the Act, it would be “contrary to the public interest” for the applicant to remain an Australian citizen; and, if so,

    (b)Whether the discretionary power conferred by s 34(2) should be exercised.

14. The parties agree that the 2016 Aggravated Sexual Assault of a Minor offence is not relevant to the decision to revoke the applicant’s citizenship. This is because the offence occurred after the applicant acquired Australian citizenship. However, the parties appear to agree that the ramifications of mandatory cancellation of the applicant’s ex-citizen visa under s 501(3A) of the Migration Act, as a result of the Aggravated Sexual Assault of a Minor offence, are relevant factors. The potential ramifications go to whether or not the discretion in s 34(2) of the Act should be exercised, particularly as to whether the applicant may face possible disadvantages and hardship if deprived of Australian citizenship. The relevant ramifications include:

    (a)Cancellation of the applicant’s ex-citizen visa and possible non-refoulement issues;

    (b)The applicant’s mental health issues; and

    (c)The interests of the applicant’s seven biological children.

    CONSIDERATION

    For the purposes of s 34(2)(c) of the Act, would it would be ‘contrary to the public interest’ for the applicant to continue to be an Australian citizen?

15. The applicant plainly has a history of unlawful conduct in making false representations to government officials.

16. Firstly, in 2004, the applicant remained in Australia unlawfully after the cancellation of his First Spouse Visa. As a result, the applicant made it necessary for the government to detain him at a detention centre and then remove him from Australia, incurring a debt to the Commonwealth totalling $14,911.20. The process of detaining and removing the applicant diverted public resources and funds to the detriment of the Australian community and the immigration system.

17. Secondly, despite the exclusion period, the applicant made a series of false disclosures to obtain his Second Spouse Visa. The false disclosures related to his identity; marital status; his former adverse migration history; his removal and outstanding debt to the Commonwealth. In making such false disclosures, the applicant made it necessary for the Commonwealth and State of New South Wales to divert public resources and funds to investigate, prosecute and hear his migration offences and citizenship offence.

18. The applicant’s migration offences and citizenship offence were a blatant attempt by the applicant to circumvent the government’s immigration system. This system is reliant on an applicant truthfully disclosing their personal circumstances. Citizenship of Australia is regarded as a special privilege and it is a reasonable expectation of the Australian community that non-citizens’ will obey Australian laws and interact honestly with immigration officials. Citizenship cannot and should not be awarded on the basis of false representations. There are no excuses for making such false statements in this regard. Therefore, I am satisfied that the applicant’s conduct has been contrary to the public interest. Section 34(2)(c) of the Act is satisfied.

    Should the discretionary power to deprive a person of Australian citizenship be exercised in this case?

    Advantages to the Australian community

19. The deprivation of the applicant’s Australian citizenship would likely result in certain advantages to the Australian community. It would deter future applicants applying for Australian citizenship from committing serious offences. In particular, this deterrence would also extend to the disclosure of false or fraudulent statements to government officials and the committing of related migration and citizenship offences. This assists in ensuring the integrity of the Australian immigration system.

20. An additional advantage is that the applicant would be deprived of Australian citizenship in circumstances where it would likely not have been granted to him on 13 September 2011 had the Department been aware of his migration offences and citizenship offence.

    Possible disadvantages and hardship the applicant is likely to face if the applicant is deprived of Australian citizenship

    Cancellation of the applicant’s ex-citizen visa and possible non-refoulement issues

21. It is anticipated that should the discretion to cancel the applicant’s Australian citizenship be exercised, the applicant would be granted an ex-citizen visa pursuant to s 35 of the Migration Act. This would ordinarily give him a right to reside permanently in Australia. However, the applicant’s ex-citizen visa would likely be revoked in accordance with s 501(3A) of the Migration Act because he is currently serving a period of six years imprisonment and therefore has a substantial criminal record; and the applicant was convicted of a sexually based offence involving a minor. Should this occur, the applicant will be notified and invited to make representations to the Minister prior to the revocation of his ex-citizen visa: see s 501CA(3) of the Migration Act.

22. The applicant has provided statements and given oral evidence in these proceedings which goes to possible non-refoulement issues should his ex-citizen visa be revoked and he is removed from Australia back to Ghana. In a letter dated 9 April 2019, the applicant says that for many years his life has been in danger in Ghana due to a fallout with his family over property disputes. He says that when he left Ghana for Australia his father, siblings and members of his extended family immediately started to share his possessions amongst themselves. Once the applicant returned to Ghana he attempted to resolve the matter but ultimately took the matter to court. He says that he won his court case and since that time there have been many attempts on his life. The applicant details in his letter one such occasion and another event involving Ms Baines. He says that his children also became targets at the time and had to move address constantly in order to evade detection. They remained under the care of his cousin, a police officer. He says that when he returned to Australia he tried very hard to get his children visas so that they could live in Australia. The applicant states that if he should ever return to Ghana, he will not live long. 

23. Despite the applicant’s evidence, there is no objective evidence before me supporting his fears of returning to Ghana. While his children have explained in their statements that they fear for the applicant should he be returned to Ghana, it is unclear how they have formed this view. The state of the current evidence does not support a finding that they feared for their life while in Ghana before they arrived in Australia in 2013. The evidence is also contradictory, as some suggest the applicant brought his children to Australia to offer them a better life and greater opportunities, while other aspects of the evidence suggest he desperately tried to get his children out of Ghana for their safety.

    The applicant’s mental health issues

24. It appears to be accepted by the parties that the applicant has some mental health issues which require ongoing support.

25. In a report dated 26 March 2016, Chris Probets, a psychologist, diagnosed the applicant with major depressive disorder combined with generalised anxiety disorder. He opined that the applicant’s condition occurred and developed over a long period of time and is to the point where he has attempted suicide and is at risk of further attempts. Mr Probets recommended the applicant be referred to a psychiatrist for assessment and prescription medication. He also recommended the applicant undertake about 20 treatment consultations with a psychologist in order to significantly reduce his symptoms. Mr Probets also noted that it was highly unlikely the applicant would receive the required treatment while incarcerated and would likely produce a good deal of progressive change if undertaken in the community. 

26. The applicant contends that that in the likely event that the applicant’s ex-citizen visa is cancelled and he is removed to Ghana, he will be unable to access the treatment required for his mental health condition. There is no evidence before me to support such a contention. While it may be assumed that Ghana has a different standard of treatment available in comparison to that available in Australia, there is no evidence before me on which to make such a finding. Nor is there contemporaneous medical evidence addressing the current status of the applicant’s mental health condition and his current treatment needs.

    The interests of the applicant’s seven biological children

27. The applicant’s seven biological children who currently reside in Australia as permanent residents will no doubt be affected by the applicant’s removal from Australia in the likely event that his ex-citizen visa is cancelled. The applicant’s seven children have all provided statements in these proceedings expressing their support and need for the applicant to remain in Australia. Also before me are letters of support previously provided to the Department in response to the notice of possible revocation of the applicant’s Australian citizenship, dated 21 October 2016. A summary of the main points raised in the statements are outlined below.

    (a)Deborah Mensah (the applicant’s eldest daughter; currently 29 years of age) describes the applicant as a very hard working man, a good person and father. She says she and her siblings have been struggling emotionally and mentally without him since his incarceration. She says that she and her brother have been working very hard to support her younger siblings and that it has been very difficult. She has been unable to continue her education because she has to be at home to take care of her siblings and it has been impossible to do anything for herself. She says that if the applicant is removed from Australia, she and her siblings won’t be able to see him for a long time due to their financial difficulties and because they fear his life is in danger in Ghana due to extended family issues.

    (b)In addition to a written statement, Joseph Mensah (the applicant’s eldest son, currently 29 years of age) also gave evidence orally at hearing. He describes the applicant as a good citizen. He also states that he is not a threat to the community and the applicant is not guilty of the offence for which he is currently incarcerated. He says the applicant committed the migration and citizenship offences as a means to escape death threats in Ghana and that he was forced into making this desperate decision to save his life and that of his children. He describes how difficult it has been since the applicant’s incarceration and that he has become the father and legal guardian of his siblings. He states that he does not know how to live without his father. He says he has lost a big part of himself and made heaps of mistakes along the way because he is lacking the support of his parents. He hasn’t been able to go back to school to study because he has to work twice as hard to support his siblings, himself and extended family back in Ghana. He says that if the applicant is sent back to Ghana it will mean that he will have to continue in his role as a father to his siblings and he won’t be able to go back to school. He says his siblings are beginning to act up due to the absence of their parents at home and he is not experienced enough in parenting to help them. As a result, he says he has developed severe migraines and finds himself getting sick frequently.

    (c)Jessica Wendy Mensah (currently 22 years of age) describes the applicant as an inspiration to herself and the community and a person of high morals and integrity. She says that without the applicant her family would be thrown into the worst kind of financial hardship and she would be forced to provide for herself and help with taking care of her younger siblings. She believes that with the applicant’s support she will excel in her chosen career path.

    (d)Mayfair Mensah (currently 18 years of age) describes the applicant as a great father. She says that as a senior student she needs her dad’s support and guidance the most at this time of her life. She says that since his incarceration, the applicant’s absence has affected her studies and her home life. 

    (e)Mavis Mensah (currently 18 years of age) describes the applicant as a kind man who always treats people with respect. She says the applicant has always been there to protect her from bad influences so she can have a better future and says he is her best friend and a great teacher. Since the applicant’s incarceration, she says she is going through a difficult time and hasn’t been able to cope well in school. She says her mood is always down and she has struggled to move forward in life.

    (f)Solomon Mensah (currently 16 years of age) describes the applicant as a very disciplined, protective and caring person. He says he always finds a way to make his children happy and gives them a lot of freedom. He says the applicant spends a lot of time taking him to soccer training and motivates him to work hard, follow his dreams and stay in school. He describes the applicant as a good influence to his team mates, siblings and his family. He acknowledges that the applicant did the wrong thing to come to Australia but says that the applicant was in danger and wanted to give his family a better life. Since the applicant’s incarceration, he says he has struggled mentally because all of his friends spend a lot of time with their dads. He says it will be very depressing if his dad moves back to Ghana because he won’t be able to afford to visit him. 

    (g)Charlotte Mensah (currently 16 years of age) describes the applicant as a wonderful and caring father who brought his family to Australia because he wanted them to get a good education, achieve their goals and have good opportunities. Since the applicant’s incarceration, she says she is never happy and her older siblings are always working hard to take care of them. She says that if the applicant was around she wouldn’t misbehave and would be a much better person.

1. At the date of this decision five of the applicant’s children are over the age of 18 years, with the oldest children (twins) about to turn 29 years of age. The youngest two children of the applicant are twins, aged 16 years.

2. While I accept that the applicant’s children have expressed sadness and explained how difficult it has been living without the applicant’s guidance and support, it does not appear to be a new circumstance. Prior to coming to Australia in 2013, the applicant’s children lived in Ghana for many years without him while he was in Australia and since the applicant’s incarceration almost four years ago, the applicant’s children have lived independently in Australia.

3. In response to the notice of Possible Revocation of Australian Citizenship dated 21 October 2016, the applicant wrote a letter to the Department in which he stated, “I have lived here for so many years without my children because I was working hard to be able to bring them over so we can all finally be together, they have lived most of their lives without me…”

4. From this prior history, it is plain that although difficult, the applicant’s children are capable of living independently without the applicant. Additionally, since the applicant’s incarceration, his oldest son Joseph has taken on the role of parent and legal guardian of his younger siblings. The available evidence demonstrates that he is capable in this role and has the support of his other siblings in providing financially for the family. There is limited evidence to demonstrate that he will be unable to continue to fulfil that role; at least until his youngest siblings reach 18 years of age.

   DECISION

5. The applicant’s migration offences and citizenship offence are serious. There is a great deal of interest in deterring others in the community from committing similar offences and in maintaining the integrity of the Australian immigration system. Accordingly, it is contrary to the public interest for the applicant to continue to be an Australian citizen.

6. I have considered and weighed the relevant advantages to the Australian community and likely disadvantages to the applicant should he be deprived of his Australian citizenship. As discussed above in these reasons, the available evidence in these proceedings is lacking in regards to potential non-refoulement obligations and the applicant’s mental health condition and ongoing needs. Based on the available evidence in these proceedings, I am satisfied that the discretion to revoke the applicant’s citizenship should be exercised.

7. It would be open to the applicant to make representations to the Minister about the revocation of his ex-citizenship visa at the appropriate time.

8. The decision under review is affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 21 February 2020

Date(s) of hearing:	9 & 10 April 2019
Solicitors for the Applicant:	Nikjoo Lawyers
Solicitors for the Respondent:	Clayton Utz