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).
[2]
(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.
[3]
(2A) The applicant satisfies the Minister as to the applicant's identity.
[4]
(2B) The Minister is satisfied that during the period:
[5]
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
[6]
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
[7]
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
[8]
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
[9]
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
[10]
(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;
[11]
information that is false or misleading in a material particular means information that is:
[12]
(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.
Mr Awuah appeared before the Tribunal on 4 March 2025 to give evidence and present arguments. No other parties, such as Mr Awuah's wife Mavis Owusu, appeared before the Tribunal to give evidence. Mr Awuah was represented in relation to the review by his representative, who also attended the hearing. The Tribunal found Mr Awuah to be a credible witness.
At the commencement of the hearing, the Tribunal noted the Department's file contains a valid s 376 Non-Disclosure Certificate. The effect of such certificate is to protect information which would be contrary to the public interest to be released. The Tribunal stated that the gist of information the subject of the s 376 certificate in this case relates to the Department's methodologies in relation to obtaining a forensic examination report and, thereby, the Forensic Report.
Invited to explain the absence of his wife from attending the hearing, Mr Awuah told the Tribunal that the Department's decision to refuse his Subclass 801 Partner visa on the basis that he had fabricated his identity and told lies to the Department about who he is has caused his wife to temporarily separate from him. He added, somewhat emotionally, that he is just devastated by the consequences of the delegate's decision as his wife now thinks he has lied to her, and her family. Mr Awuah said it is just not true what the delegate found, but it has led to his wife leaving him for the moment and he is just totally devastated. The Tribunal acknowledged Mr Awuah's response and indicated that, consistent with the President's Direction, it would restrict its review to the issue the subject of the delegate's decision rather than consider whether he continues to be in a genuine and continuing spousal relationship with his wife.
In relation to the Forensic Report, the Tribunal noted that it had the following concerns:
the examiner's review of the photographic images of Mr Awuah did not have regard to what appears to the Tribunal to be the clearest image of him, that is, P2. Rather, the examiner expressly chose to use the image of Mr Awuah in P1 'due to image quality of P2 and P3';
the image in P2 of Mr Awuah confirms that he has a distinctive twist on the helix of his right earlobe which was not the subject of any comments by the examiner in the Forensic Report, despite the fact that the twist on the helix of Mr Awuah's right earlobe is also evident in each of the images in P1 (the image used by the examiner) and P3 (the significantly blurrier image of Mr Awuah not used by the examiner due to its poor quality). Relevantly, there is no twist at all on the helix of right earlobe in the image of Kofi Poku in Q1; and,
the images in P1 and P2 each display Mr Awuah's eyes being wider and more open than those of Kofi Poku in Q1. Again, no mention was made by the forensic facial image examiner in the Forensic Report of this feature, which is clearly observable in the images of Mr Awuah in P1 and P2 but is not evident in the image in Q1 of Kofi Poku.
(1998) 158 ALR 681
The Tribunal also acknowledged that, while it does not have professional experience as a forensic facial image examiner in comparing facial images, having regard to the issues identified immediately above, it has genuine concerns that the image of Mr Awuah in P1 (and P2) is, as concluded by the examiner, to be an image of the same person in Q1.
Further, the Tribunal noted that, having regard to the (differently constituted) AAT decision in 1920345 (Migration)[2020] AATA 2956 (Mr Y's case), it is evident that facial images of Ghanaians which are assessed by a forensic facial image examiner as being 'identical' can, in fact, be erroneous. The representative stated he was unfamiliar with this published decision. The Tribunal noted Mr Y's case involved a forensic facial image examiner's report which compared the images of 2 Ghanaians, Mr Y and Mr A. Based on the forensic facial image examiner's report which assessed the facial images Mr Y and Mr A as representing the same person, the delegate concluded that Mr Y had provided a false passport. As set out in the reported decision in Mr Y's case, review of the forensic facial imaging report raised concerns for the AAT regarding the conclusion reached in that report such that it called for Mr A and Mr Y (both of whom were living in Australia) to attend separate in-person hearings at the AAT's Sydney office on the same date and at the same time. Relevantly, both parties did attend the contemporaneous hearings.
In light of the conclusion reached by the AAT in Mr Y's case that a forensic facial image examiner can make erroneous conclusions as well as the Tribunal's concerns about the Forensic Report outlined above at para [27] and, relevantly, having established that Kofi Poku's DNA had been sought and obtained by the (differently constituted) Migration Review Tribunal (MRT) as the basis of its favourable consideration of Kofi Poku's application for an Extended Eligibility (Temporary) Class TK) Subclass 445 (Dependent Child) visa on 12 August 2009 (Matter No 0808938), the Tribunal questioned Mr Awuah as to whether he would be prepared to undertake a DNA test. He immediately responded 'Please, please, yes. I hope it means my wife will stay with me'. The representative added that, as can be seen by the photographs and other documentation lodged by Mr Awuah and his wife with the Department, Mr Awuah's absolutely true and genuine relationship with his wife has been totally stripped away because of the Forensic Report as it led the delegate to conclude that Mr Awuah is not who he really is, and always has been.
The Tribunal acknowledged it had established that Kofi Poku's subsequent application for a Child (Migrant) (Class AH) Subclass 101 visa (which was referred to in the delegate's s 57 natural justice letter and the decision to refuse Mr Awuah's Subclass 801 Partner visa application) was unsuccessful, essentially because he had already turned 24 years 11 months at the time of lodgement of that application on 28 November 2011. Following refusal of his Subclass 101 Child visa on 24 September 2012, Kofi Poku sought review in the differently constituted AAT (Matter No 1218958). Although the AAT affirmed the basis of the delegate's refusal of Kofi Poku's Subclass 101 Child visa application, it did refer the matter to the Minister pursuant to s 351 of the Act. However, the application for Ministerial Intervention was unsuccessful as the Tribunal's review of Kofi Poku's Movement Records confirm that he has never arrived in Australia.
In the circumstances, the Tribunal noted it could not request Kofi Poku's attendance at a hearing as the AAT had done in Mr Y's case and it may be some time before it could locate Kofi Poku's DNA results given the time since the MRT's decision on 12 August 2009. Mr Awuah and the representative acknowledged the Tribunal's comment. Accordingly, the Tribunal's hearing was adjourned.