Osei-Wusu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 172
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Osei-Wusu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 172
File number(s): SYG 3923 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 17 March 2022 Catchwords: MIGRATION – judicial review of decision of the Administrative Appeals Tribunal – applicant refused Student visa – applicant’s wife failed to satisfy PIC 4020(1) – whether circumstances warranted a waiver of PIC 4020 – claim that applicant and his wife were separated – no compelling or compassionate circumstances Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth)
Cases cited: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127
Thakur v Minister for Immigration and Border Protection [2016] FCA 473
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 27 January 2022 Place: Sydney The Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms K Evans of Sparke Helmore ORDERS
SYG 3923 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JEFF OSEI-WUSU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 MARCH 2022
THE COURT ORDERS THAT:
1.The application filed on 15 December 2017 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application made under s 476(1) of the Migration Act 1958 (Cth) (Act) the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 10 November 2017, which affirmed a decision of the delegate of the first respondent (delegate) to refuse the grant of a Student (Temporary) (Class TU) (subclass 500) visa (visa).
BACKGROUND
The applicant is a citizen of Ghana, who applied for the visa on 10 March 2017 to undertake a Certificate IV in Disability and a Diploma of Community Services which was due to be completed in 2019. As part of his visa application, the applicant’s wife Ms Felicia Akyaa and their four children were included as members of his family unit. The criteria for the applicant’s visa are to be found in cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). They require, among other things, that the applicant satisfies Public Interest Criterion 4020 (PIC 4020).
On 6 June 2017, the Department wrote to the applicant to invite him to comment on information which was that Ms Akyaa had previously been refused a visa on 3 March 2016 on the basis that she had provided fraudulent evidence of funds to the Department as part of an earlier visa application she made. As part of the invitation to the applicant to comment, the Department noted that Ms Akyaa had failed to satisfy PIC 4020(1). As a result of this, Ms Akyaa was subject to a three-year exclusion period during which she was prohibited from applying for a visa.
One of the requirements pertaining to the applicant himself satisfying PIC 4020 was that he and each family member had not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before his visa application was made and ending when the visa was granted and refused, unless said family member was under 18 at the time of the refusal.
Accordingly, by reason of Ms Akyaa’s failure to satisfy PIC 4020(1), the Department asked the applicant to comment on whether or not there existed any compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen which might justify the waiver of any, or all, of PIC 4020, and the grant of his visa. The applicant did not respond to that invitation.
On 25 July 2017, the delegate refused to grant the visa on the basis that the applicant did not meet PIC 4020.
On 15 August 2017, the applicant applied to the Tribunal seeking review of the delegate’s decision. At the time of the application, the applicant was represented by a migration agent who for a time also represented him in these proceedings.
On 13 October 2017, the Tribunal invited the applicant to attend a hearing which he accepted and, on 2 November 2017, he appeared before the Tribunal to give evidence and present arguments. The applicant’s migration agent also attended, albeit the Tribunal hearing record indicates that the representative was not present at the commencement of the hearing as he was “running late”. The Tribunal’s decision later indicates that the agent was there for some part of the hearing.
The Tribunal records that at the hearing, the applicant gave evidence to it “clearly stating” that he and Ms Akyaa were neither permanently separated, nor divorced (CB 194 at [9(g)]).
At the conclusion of the hearing, it appears from [21] (CB 196) of the Tribunal’s reasons that the applicant’s migration agent requested an additional week to provide post-hearing submissions, which the Tribunal granted.
On 9 November 2017, an email was sent by the applicant’s migration agent to the Tribunal which attached:
(a)a three-page written submission, addressing matters which were raised at the hearing;
(b)the statutory declaration made by Ms Akyaa on 4 November 2017 which said that she and the applicant were separated and that, for that reason, she was not a member of his family unit and therefore her PIC 4020 exclusion was not pertinent to his visa, which should be granted; and
(c)some references and further identification materials from the applicant. The references related to the applicant’s work and indicated that he was a person of good character and that he undertook his work with diligence.
TRIBUNAL DECISION
On 10 November 2017, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.
The Tribunal identified that the issue in the review before it was whether or not the applicant met PIC 4020, as required by cl 500.217 for the grant of his visa. The Tribunal set out a summary of the requirements of PIC 4020 (at [6]) and noted that Ms Akyaa had previously had her Student (subclass 572) visa refused on 3 March 2016 because she had provided a bogus document, meaning that she did not satisfy PIC 4020(1).
The date of the refusal of Ms Akyaa’s visa application fell within the period which started three years before the applicant’s subclass 500 visa was made, it having been lodged on 10 March 2017. The Tribunal found that Ms Akyaa had been included in the applicant’s subclass 500 visa application as an “accompanying family member”. By reference to evidence on the Tribunal file (which said that Ms Akyaa was born in March 1979), the Tribunal concluded that she was not under 18 years of age at the time of the application, which was relevant for the purposes of PIC 4020(1).
As noted earlier, by reference to the statutory declaration the applicant claimed that Ms Akyaa and he were now separated and for that reason, that she should not be included as being a member of his family unit, which would have the effect that the PIC 4020(1) finding in respect of Ms Akyaa should not have a deleterious effect on Mr Osei-Wusu’s subclass 500 visa application, such that it should be granted.
The Tribunal took into account the array of evidence before it, which included:
(a)a marriage certificate indicating that the couple had married on 7 November 2004;
(b)the circumstances in relation to their four dependent children, all of whom still lived with Ms Akyaa in Ghana;
(c)that the applicant’s documents submitted up until that point, which included his online visa application dated 10 March 2017, indicated that he was still married to Ms Akyaa and that she was “an accompanying family member”;
(d)that she was his spouse and was not under 18 years of age;
(e)that the visa application was also accompanied by a statement from the applicant stating that he had “significant support from his family including his wife and his four children”;
(f)an invoice pertaining to health insurance indicating that Ms Akyaa had health cover with BUPA at a relevant period from 2017 until 2019;
(g)a Form 80 character assessment from Ms Akyaa, signed and dated on 12 May 2017 (namely during the delegate phase of the decision-making process) in which she proposed to travel to Australia so she could join her husband and said she wished to be with him as his wife to provide him support, and also gave her intended address in Australia as being the same as the applicant; and
(h)oral evidence given at the hearing by the applicant that he provided financial support for his family.
As noted earlier, the applicant was given the opportunity to provide post-hearing submissions and the applicant’s representative took that opportunity. The written submission attached various documents and then addressed them in turn. In relation to the issue of the separation, the written submission said (errors in original):
Secondly, Mr Wusu and Ms Akyaa stated in their declarations, in the best interest of the couple’s children their family and themselves in light of the present circumstance of the case, they decided to be permanently separated from each other. Though there are cause of concern truthfulness of the separation, however we do submit that, given the circumstances it is reasonable and understandable for a rational person to arrive at the choice they have made for the greater good of the family and especially their children and the future of the review applicant.
The “circumstance” to which the written submission refers is that, by her statutory declaration dated 4 November 2017 (being two days after the Tribunal hearing), Ms Akyaa stated at [3]:
That, by consent, I am permanently, without any duress or undue influence agreed to separate from my husband as at 4 November, 2017.
Further at [4] Ms Akyaa stated (errors in original):
That it is for the best interest of my children, my family, and my respect and my future marriage life, I must do this or sacrifices my marriage with pains for my children’s future to give their father opportunity to study in Australia, with three hours on [illegible], we have decided to separate on 4 November, 2017.
The Tribunal had regard to this evidence but was not minded to accept that Ms Akyaa was not a member of the applicant’s family unit. The Tribunal was also not prepared to accept that the applicant did not continue to be the head of the family. The Tribunal had regard to the fact that Ms Akyaa had previously had her visa refused for providing a bogus document, considered her willingness to provide bogus documents in relation to visa applications, and also the timing of the claim that the marriage was over meant that Ms Akyaa was not a reliable or credible witness (at [10]).
Unlike the delegate, who had no submissions or material before them in relation to whether or not there were circumstances which warranted a waiver of PIC 4020, the Tribunal did have the benefit of submissions from the applicant going to these considerations.
The Tribunal took into account the applicant’s work in community support with disadvantaged and disabled Australians. The Tribunal found that, while this work was commendable, the applicant’s employment was not a sufficiently compelling reason to waive PIC 4020. In particular, the evidence before it did not suggest that the applicant’s mere employment, even if it is in a field which served a benefit to the Australian community, was a compelling matter in the interests of Australia. The Tribunal noted that there was no evidence before it to indicate that, if the applicant were to cease working in Australia, either he would be irreplaceable in the role he held or that any particular business would suffer a significant disadvantage by his departure.
Overall, the Tribunal considered that it was not satisfied there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify the granting of the visa, and, for those reasons, the Tribunal determined that it would not waive PIC 4020. Accordingly, the Tribunal found that the applicant did not satisfy PIC 4020 for the purposes of cl 500.217(1) and affirmed the decision under review.
RELEVANT LEGISLATION
Clause 500.217 of Schedule 2 to the Regulations requires that:
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
(2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.
(3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.
(5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.
PIC 4020 relevantly provides:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
“information that is false or misleading in a material particular” means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
APPLICATION TO THIS COURT
By this application to show cause filed with this Court on 15 December 2017, the applicant seeks review of the Tribunal’s decision. At the time that the applicant commenced these proceedings, he was represented by a solicitor, whom I understand prepared the application. By orders made by the Court on 25 January 2018, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review by 26 March 2018. As at the hearing date, no such document was filed in time, or at all.
The applicant was also ordered to file written submissions 14 days before any hearing, and this also did not occur. The Minister filed submissions within time. On 1 November 2021, this matter was brought into my docket and listed for hearing today.
On 14 January 2022, a Notice of Withdrawal as Lawyer was filed by the applicant’s solicitor. That notice included a Notice of Intention to Withdraw which was, apparently, served on the applicant in November 2021 and the applicant therefore appeared before me unrepresented. The hearing took place (due to ongoing COVID-19 hearing protocols) via Microsoft Teams. The applicant appeared with audio only and no video. The applicant did not require an interpreter, as was also the case when he appeared before the Tribunal. The audio connection was good, no technical difficulties were experienced during the hearing and I could hear the applicant well. He did not appear to have any difficulty in communicating with the Court.
The sole ground in the application is:
The ADMINISTRATIVE APPEALS TRIBUNAL did not consider the issues that clearly arose from the materials before it.
The Minister describes this ground as being devoid of substance and says that it cannot be made out.
At the hearing before me, I asked the applicant what he wished to say in support of his ground, noting that I understood he was not legally trained, and that this ground had been prepared by his previous representative.
The applicant made submissions to me to the effect that Ms Akyaa applied for her own visa when she was overseas and that he had not been aware that she had provided a bogus document to the Department.
The applicant told me that the only thing he had in his life was his children and that he was very upset by the circumstances that had led to this particular case. The applicant said that he did not know what else he could say and that he put himself in the hands of the Court. The applicant was (audibly) upset and I offered him time to compose himself and have a drink of water. When the applicant seemed re-composed, I asked him to listen to the submissions of the Minister’s solicitor, who would take him through the relevant materials and also summarise the Minister’s submissions for him.
The Minister’s submissions were to the effect that, on a fair reading of the decision of the Tribunal, it had regard to and considered all of the relevant matters required of it in relation to the applicant’s own claims, including that because of the evidence that he and his wife had now separated, the PIC 4020 bar in relation to Ms Akyaa’s visa would no longer have an impact on the applicant’s visa application. The solicitor for the Minister noted that the applicant’s wife was not a party to these proceedings, having not been a party before the Tribunal. Having taken the applicant through the relevant visa criteria, the solicitor for the Minister also addressed the relevant parts of PIC 4020 for his benefit as well. Overall, it was submitted by the Minister that it was open to the Tribunal to find that the claimed separation of the applicant and his wife was not credible and that there was no evidence that an Australian business would suffer disadvantage if the visa was not granted.
The applicant, in submissions in reply, also said that when he applied for the visa he thought that he had every reason to believe it would be granted. The applicant reiterated that he did not know what Ms Akyaa had submitted to the Department previously. The applicant said that it transpired that she had gone to a third party for help with the financial evidence for her visa application, rather than simply going to her father and that the applicant did not know why she would have done so. The applicant indicated that Ms Akyaa was not able to properly explain to him why it was that she had chosen to go down that path, although he did not appear to deny the fact that Ms Akyaa had provided a bogus document in relation to her visa application.
The applicant also made submissions to the effect that at present he and Ms Akyaa are no longer speaking, and that she is no longer a part of his family. I explained again to the applicant, as I had at the outset of the hearing, the limitations on this Court’s jurisdiction and that any changes that had occurred to his circumstances subsequent to the Tribunal decision were unlikely to be relevant to the matters I was required to decide. While there may have been many changes to their personal circumstances from the time of the Tribunal’s decision onwards, particularly having regard to the fact the decision was made in 2017 and that it is now 2022, those matters did not impact the Court’s consideration. The Court is required to consider whether or not the decision of the Tribunal was affected by jurisdictional error as at the time the decision was made. If there have been any changes to the circumstances of the applicant and Ms Akyaa since that time, this would not impact the question of whether or not it was open to the Tribunal to find that the evidence in relation to the purported separation was not credible, and therefore to go on and consider the operation of PIC 4020.
CONSIDERATION
In this matter the Tribunal properly set out that the issue for it was whether the applicant met PIC 4020 as required by cl 500.217.
Before the delegate, the state of affairs presented was that (CB146-152):
(a)the visa application was valid;
(b)there did not seem to be any suggestion by the delegate that the applicant satisfied PIC 4020(1) himself; however
(c)Ms Akyaa had failed to satisfy PIC 4020(1) when on 3 March 2016 her VET Sector (TU572) visa had been refused due to the provision of fraudulent evidence of funds;
(d)Ms Akyaa was included in the family unit of the applicant for the purpose of the visa application; and
(e)no information had been submitted by the applicant seeking a waiver of PIC 4020 despite having been invited to comment.
When the matter came before the Tribunal, the circumstances referred to at [38(a) to (d)] above remained extant. However:
(a)the applicant newly claimed that he and Ms Akyaa were separated, which was said to have formally occurred 2 days after the Tribunal’s hearing; and
(b)the applicant did advance submissions in support of the waiver.
I agree with the Minister’s submission that it was open to the Tribunal to reject the evidence in relation to the purported separation of the applicant and his wife.
While the applicant did give some evidence at the Tribunal hearing to suggest that he and Ms Akyaa had separated, it was tolerably clear that this was said for the purpose of seeking to excise himself from the effects of the PIC 4020 bar that applied to Ms Akyaa from 3 March 2016 for a period of three years. That this was a considered strategy is not shied away from, given that Ms Akyaa said as much in her statutory declaration (see [18] and [19] above).
In essence, the formal separation was said to have taken place two days after the Tribunal hearing and in order to have the effect of removing the applicant from the effects of the PIC 4020 bar which would otherwise apply. It was open to the Tribunal to find, on the basis of the material before it, that this was not credible and that the Ms Akyaa was still a member of the applicant’s family unit.
Having so found, the Tribunal then had regard to the fact that Ms Akyaa was a secondary visa applicant in the visa application lodged by the applicant on 10 March 2017, having herself been refused a visa on 3 March 2016 by reason of having provided a bogus document. Ms Akyaa was offshore at the time and, therefore, had no review rights. The Tribunal turned to consider whether or not her visa had been refused on the basis of a failure to satisfy PIC 4020(1). In this regard, the Tribunal had regard to the definition in reg 1.12 of the Regulations of “family unit” and found that it had no doubt that at the relevant time she was, in fact, the spouse of the applicant. The Tribunal therefore found that the applicant did not satisfy PIC 4020(2).
In relation to whether or not PIC 4020(2) should be waived, the Tribunal had regard to all of the material before it, including the commendable work the applicant has undertaken in Australia, and described his work in the disability services field as being diligent. However, the Tribunal was not satisfied that there were sufficiently compelling reasons for waiving PIC 4020 in all of those circumstances. I find that conclusion was open to the Tribunal for the reasons that it gave.
In relation to the applicant’s submissions about not knowing that his wife had provided a bogus document in relation to her visa application, while the Court has considerable sympathy for that position, it is not relevant to the question of whether or not PIC 4020 applies to the applicant and would be immaterial even if the applicant were speaking about his own visa application and information or documents he had himself provided. That is because it is well established that knowing complicity is not required on the part of the visa applicant, but just that the information or document has a quality of purposeful falsity: see Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 at [45] to [50] per Buchanan J (Allsop CJ and Rangiah J agreeing).
For the purposes of PIC 4020(2), this is even more so. That is because the Minister needs to be satisfied that during the period starting three years before the application was made, the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criterion in subclause (1). This fully anticipates that an applicant might unknowingly apply for a visa with a family member included as a member of the family unit without having any knowledge at all that said person had been refused a visa because of a failure to satisfy PIC 4020(1). Accordingly, even accepting what the applicant says, namely, that he had no idea why Ms Akyaa had provided the document that she did, this would not have had any effect because an element of knowledge is not required (on the part of the visa applicant) for the purposes of PIC 4020(2). The submission of the applicant in relation to Ms Akyaa’s failure to satisfy PIC 4020(1) is directed towards what he says in an unfairness of the outcome visited upon him, as a potentially innocent party, by reason of the conduct of Ms Akyaa.
In Thakur v Minister for Immigration and Border Protection [2016] FCA 473 at [35], Perry J observed that while PIC 4020(2) may operate harshly in certain instances, that is not a ground for interference by the Court. Her Honour further said it was not open to the Court to consider the merits of the Tribunal’s decision not to waive the requirement, and that the Court’s only function in a judicial review context is limited to whether or not the decision by the Tribunal was made lawfully under the Act, citing Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 at [13].
CONCLUSION
I am satisfied that there was no jurisdictional error in relation to the Tribunal’s decision and particularly its findings, concerning both the satisfaction of PIC 4020(1) in relation to Ms Akyaa and the rejection of the alleged separation of the applicant and Ms Akyaa in order to avoid the consequences of PIC 4020 applying to the applicant.
I am also satisfied that the Tribunal’s consideration of whether the requirements of PIC 4020(2) should be waived pursuant to PIC 4020 (4) should were equally without error.
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application made on 15 December 2017 must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 March 2022
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