Anochie v Minister for Immigration and Citizenship
[2012] AATA 234
•24 April 2012
[2012] AATA 234
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0466
Re
John Chukwudi Anochie
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member JF Toohey
Date 24 April 2012 Place Sydney The Tribunal sets aside the decision under review and substitutes for it the decision that the applicant’s visa not be cancelled.
........[sgd]................................................................
Senior Member JF Toohey
CATCHWORDS
CATCHWORDS – MIGRATION – visa cancellation – applicant imprisoned for importation of cocaine – serious offence – no prior convictions – whether unacceptable risk of harm to the community – exemplary prison record – applicant on work release – current and former employers willing to employ applicant – non-refoulement obligations under international Conventions – construction of Direction 41 in respect of non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958
INTERNATIONAL LAW
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Opened for signature 10 December 1984) 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child (Opened for signature 20 November 1989) 1577 UNTS 3 (entered into force 2 September 1990)
Convention relating to the Status of Refugees (Opened for signature 28 July 1951) 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights (Opened for signature 19 December 1966) 999 UNTS 171 (entered into force 23 March 1976)Protocol relating to the Status of Refugees (Opened for signature 31 January 1967) 606 UNTS 267 (entered into force 4 October 1967)
CASES
Chan Yee Kin v MIEA [1989] HCA 62
RCLN and Minister for Immigration and Citizenship [2011] AATA 418
SECONDARY MATERIALS
Department of Immigration and Citizenship, Refugee and Humanitarian branch, International Obligations and Humanitarian Concerns Assessment, September 2011.
Minister for Immigration and Citizenship, Direction No. 41 - Visa refusal and cancellation.
Home Office, UK Border Agency Country of Origin Information Report - Nigeria, 9 July 2010.
Human Rights Watch, World Report 2011 - Nigeria, January 2011.
Human Rights Watch, World Report 2012 - Nigeria, January 2012.
Nairaland Forum, 23 February 2009 at
NSW Probation and Parole Service, Immigration Report, 14 June 2011.
Refugee Review Tribunal, Country Advice – Nigeria (NGA37358), 7 October 2010.
Report of joint British-Danish fact-finding mission to Abuja and Lagos, Nigeria, UK Border Agency and Danish Immigration Service, 29 October 2008.
US Department of State, Bureau of Democracy, Human Rights and Labor, Nigeria - International Religious Freedom Report, 17 November 2010.
US Department of State, Country Report on Human Rights Practices - Nigeria, 2010.Vanguard, ‘Decree 33 to go’, 9 October 2009 at
REASONS FOR DECISION
Senior Member JF Toohey
BACKGROUND
Mr John Chukwudi Anochie is a citizen of Nigeria. He arrived in Australia in October 2000 as a volunteer assistant to the Nigerian Paralympics team. In May 2001, he married an Australian citizen. In May 2003, he was granted a permanent spouse visa.
In June 2007, Mr Anochie was convicted of importing into Australia a marketable quantity of a border controlled drug, namely cocaine. He was sentenced to eight years and six months imprisonment, with a non-parole period of five years and four months ending on 29 February 2012.
By s 501(2) of the Migration Act 1958 (the Act), the Minister for Immigration and Citizenship (the Minister) may cancel a person’s visa if:
(a)the Minister reasonably suspects that the person does not pass the character test in s 501(6)(a) of the Act; and
(b)the person does not satisfy the Minister that she or he passes the character test.
On 30 January 2012, the Minister cancelled Mr Anochie’s visa on the ground that, by reason of his substantial criminal record as defined by s 501(7) of the Act, he does not pass the character test.
Mr Anochie concedes he does not pass the character test in the Act but says the discretion not to cancel his visa should be exercised in his favour. The Minister contends that Mr Anochie’s continued stay in Australia presents an unacceptable risk of serious harm to the Australian community.
THE ISSUE
I have to determine whether Mr Anochie’s visa should be cancelled or whether the discretion in s 501(2) of the Act should be exercised in his favour.
HOW IS THE DISCRETION TO BE EXERCISED
The discretion in s 501(2) must be exercised in accordance with Direction No. 41 - Visa refusal and cancellation (Direction 41). Direction 41 is made by the Minister pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2a).
The nature of any harm that a person may cause to the Australian community and the risk of that harm occurring are central considerations in the exercise of the discretion: cl 5.2.
Insofar as they are relevant in the particular case, a decision-maker must take into account four primary considerations:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;
(d)relevant international law obligations, including but not limited to: the best interests of the child, as described in the Convention on the Rights of the Child; and non-refoulement obligations under the Convention and Protocol Relating to the Status of Refugees.
Other considerations, although not primary, may be relevant and, if so, must be considered. Generally, however, they should be given less weight than that given to primary considerations: cll 11(1) and (2). Other considerations include:
(a)family ties, the nature and extent of any relationships;
(b)the person’s age;
(c)the person’s health;
(d)any links to the country to which the person would be removed;
(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;
(f)level of education; and
(g)whether the person had been formally advised in the past about conduct that brought them within the deportation or character provisions in the Act.
The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
Direction 41 requires that due consideration be given to the objectives of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: cll 5.1 (2) and 10.1.
Factors relevant to assessing the level of risk of harm to the community of a person’s continued stay in Australia include the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated: cl 10.1(2).
Seriousness of the offence
Mr Anochie was arrested on 30 October 2006 and charged with importing a marketable quantity of a border controlled drug, namely cocaine, between about 26 September 2006 and 30 October 2006. The pure quantity of cocaine was 1,415.5 grams. It had an estimated wholesale value of about $311,000 to $494,000 and its approximate street value was considerably greater.
On 12 May 2008, Mr Anochie pleaded guilty as charged. Sentencing him in the District Court of New South Wales on 14 November 2008, Judge Hosking outlined the following facts as given by the Australian Federal Police (AFP).
In September 2005, the AFP in Sydney received information from Interpol that German authorities had intercepted a package containing 1.8 kilograms of cocaine sent from South America and addressed to Peter Obi at an address in Petersham. As part of that investigation, Mr Anochie came to the attention of the AFP and was identified as using “multiple post boxes located around the Sydney metropolitan area”.
Telephone interception warrants were obtained for a mobile phone subscribed in Mr Anochie’s name and another subscribed in the name of Ignatius Obi. Mr Anochie was subsequently identified as having opened a post box in Campsie in July 2004 in the name Ignatius Obi. He was also identified as having sent a list of ten mailbox addresses, including the one in Campsie, to another email address in July 2006.
In October 2006, the AFP investigation tracked the delivery from Brazil to an address in Campsie of a carton containing three packages which were intercepted and found to contain 1,1415.4 grams of cocaine. In a subsequent controlled operation, Mr Anochie was arrested when he took delivery of the parcel.
Sentencing Mr Anochie, Judge Hosking said:
In terms of the objective gravity of this offence there are, amongst other factors, these factors. Firstly, as I have indicated, the quantity was substantial, seven hundred times the marketable quantity. The value was correspondingly substantial. The offender, despite his claim to the AFP that he was just picking up the package, was, clearly, in truth the importer of these items and the cocaine within them. In my view, that conclusion is absolutely inescapable.
Based on the facts, Judge Hosking said, Mr Anochie appeared to have been the “sole organiser, importer and distributor” of the cocaine in Australia and he stood to be sentenced at a higher level than someone who was a mere courier or who was simply collecting the package for somebody else. Judge Hosking rejected Mr Anochie’s claim to police when arrested that he was “just picking up the package” for a friend. Further, while noting that he was sentencing Mr Anochie only for the present importation, Judge Hosking said it was “clear that this was not the only instance of such an importation”. He described Mr Anochie’s claim that he was only a courier as “patently untrue” and said he “knew full well he was dealing in cocaine”.
Judge Hosking considered that Mr Anochie was entitled to “some small reduction in his sentence” on account of the assistance he gave to police after his arrest although he noted that the police had assessed it as being of little assistance. He also considered “some discount” was appropriate in view of his plea of guilty, although it “came very late”. In fact, it came on the day of the listed date of Mr Anochie’s trial. On account of his “willingness to facilitate the course of justice” Judge Hosking thought “a discount of approximately, but not exactly, necessarily ten per cent” was appropriate.
Mr Anochie gave evidence before the Tribunal that he was working as a labourer in 2003 when he met a man at work who seemed always to have plenty of money. At the time, Mr Anochie was sending money to support his family in Nigeria and his sister had been diagnosed with cancer. His evidence was not entirely clear, but I take him to say that the man suggested he could make money by collecting parcels sent from overseas.
In evidence before the Tribunal, Mr Anochie gave evidence that he opened two mail boxes, one in 2004 and another in 2005, in false names. His evidence about the number of mail boxes he opened was unclear but, when pressed, he said he opened three “that he could recall”. He conceded they were opened in order to receive drugs from overseas, and he conceded that doing so amounted to involvement in the planning part of the importation of drugs. He also conceded that he had three mobile phones which the Minister contends is suggestive of criminal activity.
Despite all this, Mr Anochie says, he did not actually take part in any importation until the man at work arranged for another man to call him about picking up a parcel and passing it on to a friend. He received the phone call in about August 2006 from the second man and he agreed to pick up the parcel which led to his arrest. He maintains that was the only time he was involved in the actual importation of drugs.
Mr Anochie gave evidence that, over several months in 2006, he also helped the first man by sending money for him through Western Union to addresses in Brazil, Nigeria and Pakistan. AFP inquiries showed that, between February 2006 and August 2006, Mr Anochie sent amounts between several hundred dollars and several thousand dollars, totalling approximately $77,000. He says the man was too busy to send the payments himself and asked Mr Anochie to help; he paid Mr Anochie small amounts of about $50 each time. Mr Anochie maintains this activity had nothing to do with drug importation or any form of money laundering.
There are several reasons to believe Mr Anochie played a greater part in the importation of drugs than he admits. In particular, the sentencing remarks show:
·Although he claims to have opened only opened three post office boxes, Mr Anochie was “identified [by the AFP] as using multiple post boxes around the Sydney metropolitan area”, and the sentencing remarks show that he was found to have, at the time of his arrest, false identity documents;
·In July 2006, an email with a list of ten mailbox addresses, including the two which he admits to opening, was sent from his address to another email address;
·In a conversation intercepted in September 2006 under a telecommunications interception warrant, Mr Anochie was heard to describe to the caller how packages are x-rayed to determine their contents which was why “using books is no good any more”; the caller said “that means that if I am able to use iron or aluminium package it would be difficult for the dogs to sniff out anything”. Mr Anochie told the caller, “You know the one you did for me last time, if you can do it again it would come into here.”
·Scales were found in Mr Anochie’s home which, on examination, showed traces of cocaine. He claims he never used them to cut up cocaine for the purposes of distribution and they were only used by the other man who sometimes stayed at his home, and apparently leased it for a period in 2005 when Mr Anochie was in Nigeria;
·A case note by the Silverwater prison parole unit of an interview with Mr Anochie on 17 November 2011 records that he told the officer “he was motivated by money due to supporting his family in Nigeria and the news that his sister had been diagnosed with cancer and required at least $10,000 per treatment”. The note records him saying “it was too easy to get involved, he knew a bloke who described the whole process is very easy and financially rewarding”’. He “insisted that, as the middle man, he did not see the quantity or quality of the drugs as he picked up parcels and delivered them only” (my emphasis).
To be fair to Mr Anochie, it is not clear whether the officer’s reference to “parcels” is to parcels picked up on more than one occasion, or to the three packages contained in the parcel he was arrested with.
All of the evidence points to the conclusion that Mr Anochie’s involvement in the importation of drugs was considerably greater than he claims. I do not accept that he did no more than collect a single parcel, the contents of which he knew nothing about. It is improbable, in light of all the evidence, that he went to the trouble of opening a mail box in a false name, as early as 2004, and another in 2005 at the suggestion of his friend, but made no use of them until an unsolicited phone call in August 2006. Moreover, the only sensible interpretation of the intercepted telephone conversation is that he was actively involved, and on more than one occasion. At the very least – as he conceded before the Tribunal - he was knowingly involved in planning for the importation of drugs.
Despite being of interest to police for nearly two years before his arrest, Mr Anochie was charged with, and convicted of, one offence only. One offence does not suggest a proven pattern of criminal behaviour.
However, the fact remains that Mr Anochie’s offence was very serious indeed. At the very least, he facilitated – if not organised - the importation into Australia of a quantity of cocaine several hundred times greater than the marketable quantity of two grams, and approaching the commercial quantity of two kilograms. The maximum sentence of 25 years for the offence indicates the seriousness with which it is regarded generally, and the sentence imposed by the Court indicates the seriousness with which it regarded his particular offence. The seriousness of his offence weighs heavily against the exercise of the discretion.
Risk of the conduct being repeated
A person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending: cl 10.1.2(1). Clause 10.1.2(2) provides:
The following factors are to be considered as particularly relevant to this assessment:
a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment;
c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
Before the Tribunal, Mr Anochie stated several times that he accepts full responsibility for his actions and for “everything” set out in Judge Hosking’s sentencing remarks. However, while he appeared genuine, he disputed a number of the facts set out. For instance, he disputed that he had opened “numerous” mailboxes around Sydney, maintaining he opened only three. In light of the evidence, that appears unlikely.
When it was put to Mr Anochie that the intercepted telephone conversation clearly indicated his involvement in importing drugs on previous occasions, he claimed that he referred to “last time” only to show the caller that he was a “big man” in order to gain his confidence. In the context of the evidence overall, I do not accept that explanation.
After five years in gaol for one offence, any person might be reluctant to admit to other offences. However, that Mr Anochie has minimised his involvement raises questions about how genuine his remorse is and how likely it is or not that he will repeat his conduct.
The task of assessing the risk of conduct being repeated becomes more difficult than usual in the case of a single offence. Where a person has been in custody since his arrest, it is meaningless to say he has not offended again. Where there is no suggestion that the offender has a drug habit himself, participation in a rehabilitation program or other efforts to deal with the habit are irrelevant. In such a case, “rehabilitation” is difficult to measure; the Tribunal is often left with little more than the applicant’s assurance that he or she will not re-offend.
Police checks show that Mr Anochie had several, apparently minor, traffic infringements, but no criminal convictions, before the present offence. He denies any use of illegal substances, and there is no evidence to suggest otherwise.
At the time he was sentenced, Mr Anochie had been in custody for more than two years. Judge Hosking noted:
In custody he is described by a senior correctional officer responsible for the offender’s wing as being very settled and a hard and constant worker. He works in the furniture unit as a spray painter and is described by his supervisor is the best worker they have ever had. The author of the pre-sentence report says that the offender acknowledged his role in these offences and expressed deep regret his actions.
Report of the NSW Probation and Parole Service
According to an Immigration Report prepared by the NSW Probation and Parole Service on 14 June 2011, Mr Anochie is the youngest of seven siblings, one of whom, a sister, died of cancer in 2007. All his family members remain in Nigeria and he described having a close and religious family upbringing. He moved to Australia for financial reasons and had the responsibility of supporting his family by working and transferring money to them regularly. He had formed strong friendships through his local African church which he attended weekly before being incarcerated. He formed a relationship not long after arriving in Australia and married a year later. The marriage ended in 2004 and he returned to Nigeria where he had a brief relationship with a woman with whom he has a six-year-old son. That relationship ended soon after and his son lives with his mother in Nigeria. He had been supported by friends and leaders of the African church by way of regular visits string his incarceration.
The report shows that Mr Anochie completed the equivalent of year 12 at high school in Nigeria. In 2001, he started a bricklaying and rocklaying course at TAFE in Sydney which he completed in 2004. Enquiries with his previous employer had indicated that he was “an asset to the company” and a “fantastic employee [who was] extremely reliable and never missed a day of work in the five-year period”. A correctional officer had confirmed that he was “a very settled inmate, a hard and consistent worker who has not presented as a management problem”. He had not been charged with any institutional misconduct while in custody since 2006 and urinalysis tests since May 2007 had all returned negative results for illicit substances.
The report further shows that, during his incarceration, Mr Anochie had “held ongoing gaol-based employment, first as a spray painter in the Furniture Unit for two years during which time his supervisor described him as “the best consistent worker they had ever had”. He had never had a day off, he was always polite and had been granted responsibility for the spray-painting unit and for training inmates in the spray painting trade. He went on to work as a leading hand in the Upholstery Unit and a general hand in other Units. He had attended a number of educational programs.
The report goes on to show that Mr Anochie:
[H]ad stated that he acknowledges the criminality of his actions and accepts full responsibility. He expressed his understanding of the ramifications of drug use on individuals and the community having had practical experience of this via inmates with drug addictions and subsequent criminal histories in custody. He stated that he is committed to returning to the community workforce and leading a law-abiding lifestyle. He is motivated to regain his liberty and remain a resident of Australia”.
Mr Anochie was released from prison on 29 February 2012 and has been in custody pursuant to s 189 of the Migration Act 1958 since then. He will be on parole until 29 April 2015. It is submitted for him that the 13 conditions to which his parole is subject constitute “the ongoing supervision of the Commonwealth”. I accept they offer an incentive, if he is allowed to remain, not to reoffend.
From 18 July 2011 until he was taken into immigration detention in late February 2012, Mr Anochie participated in a work release program. He was been employed full time by the same employer who is willing to employ him employed after his release. He would leave the prison at 4.30am and travel by public transport to his place of employment, returning each evening by 5.30pm. He was free to spend from Friday evening to Sunday evening in the community. He had to say where he is going and with whom, and was monitored by means of a bracelet. There is no evidence before the Tribunal about criteria for eligibility for work release but, plainly, a person must be regarded as reliable and trustworthy in order to qualify.
Evidence of witnesses
Several witnesses gave oral evidence and provided written statements testifying to Mr Anochie’s genuine remorse and full acceptance of responsibility for his actions.
Pastor Samuel Abalo, from the Living Word Worship Centre, who has known Mr Anochie for over 10 years, gave evidence that Mr Anochie has admitted his error and assured him and the leaders of the church that he wants to move on. Pastor Abalo believes he is genuine.
Ms Grace Iheanacho, Welfare, Health and Youth Coordinator with the African Communities Council of New South Wales, gave evidence that she has visited Mr Anochie in prison and witnessed “a massive and empirical change” in him. She believes he is genuinely remorseful and regrets his actions.
It must be said that neither Pastor Abalo nor Ms Iheanacho has any knowledge of the offence for which Mr Anochie was imprisoned other than that it involved drugs; neither knows the amount or, it seems, the kind of drug involved. Their evidence has less value as a result but the NSW Department of Corrective Services record of visitors to Mr Anochie from 7 November 2006 to 14 January 2012 shows that both have visited him over the years since 2006 and I accept what they say about his genuine remorse.
Mr Richard Carr, who employed Mr Anochie share as a bricklayer between 2001 until his arrest in 2006, provided a written statement and gave oral evidence. He said Mr Anochie was an extremely hard worker and very reliable, and he was “very shocked” when he was arrested and convicted of a “serious drug offence,” although he too was unaware of “the fine details” of the offence. Mr Carr believes his offence was out of character. Despite having children and saying he “hates drugs”, Mr Carr believes Mr Anochie deserves a second chance and is confident he can be relied on. He will employ him again if he stays.
A number of other people, including Pastor Abalo’s wife, Enid Abalo, and other church members, have provided letters in support of Mr Anochie’s application. Most are in very general terms and none of the writers appeared before the Tribunal. I attach no weight to these documents.
Whether the person was a minor when they began living in Australia
The relevance of this consideration is that, in some circumstances, it may be appropriate to the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia: cl 5.2(4).
Mr Anochie was 32 years of age when he arrived in Australia. Whether he was a minor is not a relevant consideration in his case.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
Clause 10.3 provides that, reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on the character. By way of example, it is stated that “a period of more than 10 years prior to engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration.”
Mr Anochie had been living in Australia for five years at the time he came to the attention of the AFP, and six years when he was arrested. He had been here four years when he opened a mail box in June or July 2004 and showed himself at least willing to become involved in the planning of the importation of drugs.
Although he appears to have integrated readily into the Australian community, being employed full time and studying from shortly after his arrival, the relatively short time before he engaged in criminal activity means, in my view, that nothing about this consideration weighs in his favour.
Relevant international law obligations
Australia has international obligations as a signatory to the Convention on the Rights of the Child (CROC), the Convention and Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child. Where relevant, any non-refoulement obligations, including those in the Refugees Convention, must be considered: cl 10.4.
A note to clause 10.4 states:
Notwithstanding international obligations, the power to refuse to grant a visa or cancel a visa must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible minister.
Convention on the Rights of the Child
Mr Anochie has a six-year old son who lives with Mr Anochie’s mother in Nigeria. He has no children in Australia and there is no evidence to suggest there is a child in Australia who might be adversely affected by his removal.
Non-refoulement obligations under the Refugees Convention
By Article 1A(2) of the Refugees Convention, a person who has a well-founded fear of persecution on the ground of his or her religion is a refugee for the purposes of the Convention. By Article 33, Australia has agreed not to expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of a territory where his or her life or freedom would be threatened on account of his or her religion.
Although Mr Anochie had not raised the matter himself, the delegate who made the reviewable decision on behalf of the Minister requested an International Obligations and Humanitarian Concerns Assessment from the Refugee and Humanitarian branch of the Department of Immigration and Citizenship as to whether his removal would put him at risk of persecution on the ground of his religion.
The Assessment, dated 2 September 2011, referred to information from a range of government and non-government sources about the treatment of Christians in Nigeria. It concluded that “Christian/Muslim conflicts” in Nigeria were largely limited to the northern and central states and Mr Anochie should consider living in any of the predominantly Christian southern states should he return to Nigeria.
This matter was not pressed in the present proceedings, properly in my view, given information from a wide range of sources showing that the Christian-dominated south of Nigeria, where Mr Anochie is from, is not subject to the inter-religious tensions and violence that exist further north (see, for example, US Department of State, Bureau of Democracy, Human Rights and Labor, Nigeria - International Religious Freedom Report, 17 November 2010; Home Office, UK Border Agency Country of Origin Information Report - Nigeria, 9 July 2010; Human Rights Watch, World Report 2011, January 2011).
I am satisfied that Mr Anochie does not have a well-founded fear of persecution in Nigeria on the ground of his religion. It follows that no non-refoulement obligation arises under the Refugees Convention.
Non-refoulement obligations under the ICCPR and the CAT
With regard to Australia’s non-refoulement obligations under the ICCPR and the CAT, cl 10.4.3 of Direction 41 provides that the following are to be considered:
(a) The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);
(b) The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing that person would be in danger of being subjected to torture; and
(c) The prohibition against reform under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of the person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.
Decree 33
Mr Anochie claims that his forced return to Nigeria would expose him to a real risk of being subjected to torture, or to cruel, inhuman or degrading treatment or punishment, in violation of Article 7 of the ICCPR, by reason of Decree 33 (the Decree) which came into force in 1990.
The relevant parts of Decree 33 provide:
12(2) Any Nigerian citizen found guilty in any foreign country of an offence involving narcotic drugs and psychotropic substances and who thereby brings the name Nigeria into disrepute shall be guilty of an offence under this subsection.
12(3) Any person convicted of an offence under subsection […] 2 of this section shall be liable to imprisonment for a term of five years without an option of [a] fine and his assets and properties shall be liable to forfeiture as provided by this decree.
Information from a range of government and non-government sources complied by the Refugee Review Tribunal shows there is argument in Nigeria as to whether punishment under Decree 33 constitutes double jeopardy or not. On one view, expressed by officials from the Nigeria National Drug Law Enforcement Agency (NDLEA) to a British-Danish fact-finding mission in 2007-2008, prosecution and conviction under Decree 33 is for bringing the name of Nigeria into disrepute by being convicted of drugs offence abroad, and is not the same as being convicted twice for the same offence: (see: Refugee Review Tribunal, Country Advice – Nigeria (NGA37358), 7 October 2010).
The Department of Foreign Affairs and Trade (DFAT), in a cable dated 29 March 2012, has advised that the Nigerian Federal High Court has reached opposing views in two cases, both of which are now on appeal to the Court of Appeal.
Whether or not the application of Decree 33 would amount to double jeopardy, the real question is whether Mr Anochie faces a real chance of being detained, imprisoned, and subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Information about the application of Decree 33 is not altogether clear and is inconsistent in parts.
According to the DFAT cable of 29 March 2012, Decree 33 is still in force, despite being listed for repeal in an amendment act before Parliament in 2005. It shows that NDLEA officials advised DFAT in March 2012 that, since 1999, the courts have deliberately given “low sentences such as two to three months imprisonment” to convey their objection to the Decree and, since 1 April 2003, no repatriated Nigerian nationals have been prosecuted under it.
In contrast, according to the Report on human rights issues in Nigeria: joint British-Danish fact-finding mission to Abuja and Lagos, Nigeria by the Danish Immigration Service in January 2005, two Nigerian drug dealers were deported from Italy to Nigeria in March 2003 and, on arrival in Nigeria, were handed to the NDLEA. The report also noted a report in the Vanguard newspaper on 8 July 2004 that, during the first six months of 2004, the NDLEA had detained a total of 55 deported drugs-convicted Nigerians upon arrival at the Murtala Mohammed airport, and had stated that all would be put on trial.
According to NDLEA officials interviewed by the British-Danish Fact Finding Mission 2007-2008, it was enforced between 1990 and 2000; no information was available regarding the number of prosecutions and convictions from 1990 to 1995 but, in the period 1995 to 2000, 451 Nigerians had been prosecuted and convicted. NDLEA officials reported that it was suspended in 2001 due to public concerns about double jeopardy but the Fact-Finding Mission noted “reports of returned Nigerians with foreign criminal convictions being targeted by police on return continued into 2005” What is meant by “targeted” is not clear. However, officials from the Nigerian Ministry of Justice reported, in interviews in 2005, a person “could face being tried again” on return and “drug offences are punished sternly” in Nigeria: Report of joint British-Danish fact-finding mission to Abuja and Lagos, Nigeria, UK Border Agency and Danish Immigration Service, 29 October 2008.
On 23 February 2009, Nairaland Forum, a Nigerian internet discussion forum, reported the appearance of the director-general of the NDLEA before a Parliamentary committee. He told the committee the number of Nigerians involved in the trafficking of hard drugs across international borders had taken a “frightening dimension” and he called for additional support to combat the problem which, he said, was “fast destroying” Nigeria. He said that, as at 2005, some 1,250 Nigerians were “languishing” in foreign for drug-related offences, as figures for 2006 on were not available, he thought this “grossly underestimated” the number. According to the forum, the chair of the committee said the situation “demanded urgent intervention from government” and that other countries refused to provide relevant information relating to Nigerians in their countries “on the ground that double jeopardy exists” under Decree 33:
In October 2009, the Nigerian daily Vanguard newspaper reported that “the obnoxious Decree 33 which provides for double punishment of drug offenders may soon be abolished; the NDLEA had announced that, though no Nigerian citizen had been convicted under it since 2003, the agency was working “assiduously” for its abolition:
There is no information before the Tribunal about the outcome of any of those prosecutions or, even, whether any person detained has come to trial.
Mr Anochie claims he has already come to the attention of the Nigerian authorities in Australia and that his deportation, and the reason for it, would come to their attention on his return. He claims that, in December 2007, the Nigerian embassy sent two men, whom he has identified by name, to see him with the purpose of interviewing him about his conviction but he would not participate in the interview.
A NSW Department of Corrective Services record of visitors shows no record of a visit by anyone by the names identified by Mr Anochie.
A letter dated 29 November 2006 from “I.A. Saleh, Consular Officer” of the Nigerian High Commission in Canberra to the Deputy Governor of Parklea prison is before the Tribunal. It refers to “our telephone discussion” about Mr Anochie and the officers impending consular visit on 30 November 2005 [my emphasis]. Given the date of the letter and Mr Anochie was not in custody until September 2006, the date of the proposed visit is clearly incorrect. The stated purpose of the visit was “to enable me to interview Mr Anochie to determine the nature and type of consular assistance that may be extended to him”.
The record of visitors shows a visit on 30 November 2006 by “Ibrahim Saleh” and his relationship to Mr Anochie and the visit type as “professional”. Mr Anochie does not dispute that this visit occurred but says he has no recollection of it. It appears, from Mr Saleh’s letter, that his visit was to be a routine consular visit. It makes no reference to why Mr Anochie was in prison but it is reasonable to assume Mr Saleh learned of the offence from his discussion with the Deputy-Governor.
There is no evidence before the Tribunal about the practice for recording visitors. It is not clear whether the record reflects actual visits or what, if anything, is recorded if a prisoner refuses to see someone. Mr Anochie insists the visit in December 2007 took place and says he immediately went back to his cell and wrote down the men’s names. I accept he is telling the truth but he may be mistaken.
Mr Anochie further claims that, in March 2011, he received a letter from the NSW Attorney General’s Department seeking his consent to release his criminal record to the Nigerian embassy but “he refused to participate in this request”. According to the Minister, there is no record of such a letter being received by Mr Anochie. Mr Anochie has not produced a copy of the letter, and there is no record of correspondence received by prisoners before the Tribunal or evidence about the practice of recording mail. In these circumstances, I cannot draw any conclusion about the contents of any letter or even whether one was received.
The International Obligations and Humanitarian Concerns Assessment advised there is no evidence to suggest that the Nigerian authorities had shown any interest in Mr Anochie. However, if his visa were to be cancelled, he would likely be detained in an immigration detention facility until his removal to Nigeria. Factors including the requirement that the Department alert relevant airlines of a passenger’s criminal history may result in the Nigerian government becoming aware of his criminal conduct in Australia.
It is a reasonable assumption, on the evidence, that the Nigerian authorities are aware of Mr Anochie’s drug conviction. Even if they are not, I find it more probable than not that it would come to their attention if he is returned to Nigeria and would be known to them on his return.
The consequences of this are unclear. It is not clear whether Mr Anochie would be simply “monitored” – whatever that means – or detained on arrival. It is not clear what chance he faces of being detained under Decree 33 and, if so, what that would mean for him. However, in the language of the High Court in Chan Yee Kin v MIEA[1989] HCA 62 in relation to the meaning of “well-founded fear” of persecution in Article 1A(2) of the Refugees Convention, the chance that he may be detained under Decree 33 and subjected to the type of harm that would engage Australia’s non-refoulement obligation cannot be dismissed as remote or insubstantial, or a far-fetched possibility and is, therefore, “real”.
A report compiled by the Refugee Review Tribunal, Country Advice – Nigeria (NGA37358) dated 7 October 2010, which is not disputed, shows that:
Corruption is endemic at all levels of government. Police and security forces are also notoriously corrupt, and the progress of criminal proceedings has frequently been reported to depend on paying significant bribes to arresting officers, prison guards and other officials. Improper influence of the judiciary, life-threatening pre-trial detention facilities, and lack of access to legal representation and a fair, timely trial are endemic in the Nigerian criminal justice system.
In January 2012, Human Rights Watch reported that:
As in previous years, the undisciplined Nigeria Police Force was implicated in frequent human rights violations, including extrajudicial killings, torture, arbitrary arrests, and extortion related abuses. The police routinely solicit bribes from victims to investigate crimes and from suspects to drop investigations. Embezzlement of police funds is rife among senior police officials who also often demand monetary “returns” from money extorted from the public.
In January 2012, the Border Agency of the UK Home Office noted the US State Department Country Report on Human Rights Practices 2010, which stated:
Prison and detention conditions remained harsh and life-threatening. Most of the country's 222 seven prisons were 70 to 80 years old and lacked basic facilities…Amnesty International reported in February 2008 that death-row inmates and prisoners awaiting trial these conditions that are even worse.
For Mr Anochie it was submitted that his detention under s 189 of the Act and his removal would constitute “punishment” within the meaning of Article 14(7) of the ICCPR, thereby putting Australia in breach of its international obligations. Article 14(7) is not referred to in Direction 41. However, I do not propose to consider this matter further because I am satisfied that Mr Anochie’s removal would put Australia in breach of its international obligations under other Articles.
Is a conclusion Australia’s non-refoulement obligations would be breached determinative?
On one view, a finding that Australia's non-refoulement obligations would be breached by a person’s removal is the end of the matter because clause 10.4.3(1)(c) operates to override all other considerations (see: RCLN and Minister for Immigration and Citizenship [2011] AATA 418).
Clause 10.4.3(1)(c) provides:
The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of the person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.
With respect, I do not agree with the interpretation that clause 10.4.3(1)(c) can, in effect, be the end of the matter. It must be read in context. Clause 10.4.3 is headed “Other relevant international obligations” (that is, other than the Refugees Convention). As I read 10.4.3(1)(c), the reference to the “absolute” prohibition against non-refoulement is a reference to the unfettered obligation in the ICCPR and the CAT, as distinct from that in the Refugees Convention in which, by Article 33(2), the benefit of refugee status does not extend to a person who has, or is reasonably suspected of having, committed a particularly serious crime.
Moreover, nothing in Direction 41 suggests that clause 10.4.3 has any primacy; it is just one of several primary and other considerations which a decision-maker is bound to take into account where relevant, the overall objective of which is the protection of the Australian community. If it was not clear from the structure of Direction 41, the preamble in cl 5.2(3) states explicitly that:
Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
The finding that Mr Anochie’s removal would put Australia in breach of its non-refoulement obligations is one of the primary considerations to be weighed with all others in deciding whether the discretion should be exercised in his favour.
Other considerations
There is some overlap between considerations of a person’s family ties, his or her links to the country to which he or she would be removed, and any hardship likely to be experienced by the person or family members resident in Australia.
Family ties, the nature and extent of any relationships and any links to the country to which the person would be removed
Mr Anochie separated from his Australian wife in 2004. When he returned to Nigeria in 2005, he formed a relationship with a woman with whom he had a son. The woman with whom he had child is now married and lives with her husband in London. His son lives with Mr Anochie’s mother. Mr Anochie’s son now lives with his mother in Nigeria.
The Immigration Report shows that Mr Anochie told the probation and parole officer that he is close to all his siblings in Nigeria and that he called his family twice a month. He gave evidence that he is close to his mother.
Nothing about these considerations weighs against Mr Anochie.
Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia
I accept that Mr Anochie wishes to remain in Australia. He has shown himself to be diligent in completing a TAFE course and remaining in employment when he was not in custody. However, there is no evidence that he would experience any particular hardship if returned to Nigeria. He has spent most of his life there, he speaks the language, he now has a trade and it is reasonable to assume he could find employment, and he has the support of his family to whom he is close.
Other than in relation to Decree 33, I am not satisfied that Mr Anochie would face any particular hardship if returned to Nigeria. The only member of his immediate family present in Australia is his wife, Refiloe Rosemary Anochie, from whom he has been separated since 2004.
In a statement dated 6 October 2011, Ms Anochie wrote in support of her husband’s application. She stated that he is
a focussed and very hard worker, who will undertake whatever is necessary to better himself and his family. His loyalty to his colleagues, whom he advised me not to associate with, has cost us both dearly.
She concluded that, maybe for her own “selfish reasons”, she would be losing a person who gave her guidance tolerance patience [sic] in a time of my life that was not good”.
The state of Mr Anochie’s relationship with his wife is not entirely clear. There appears to be some suggestion, but no evidence, of reconciliation and Ms Anochie did not appear before the Tribunal to give evidence. The record of prison visits shows that she visited Mr Anochie twice in late 2011 but, otherwise, there is no evidence of contact between them while he has been in gaol. While it appears she would not wish to see him removed, she does not suggest in her statement that she it would cause her any hardship.
Nothing about this consideration weighs in Mr Anochie’s favour.
Level of education
Any efforts made by a person to improve their education and, therefore, increase the capacity to positively contribute to the Australian community through employment or other activities may be considered in their favour: cl. 11(f)(ii)
It weighs in Mr Anochie’s favour that, shortly after arriving in Australia, he put his mind to full-time employment and studying for three years to obtain his bricklaying qualification. He gave evidence before the Tribunal that one of the reasons his marriage broke down was that he was working full-time and studying at night, so he and his wife could “have tomorrow”, but she did not share the same motivation. His capacity to contribute positively to the Australian community through employment is supported by his current and former employers.
Whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provision of the Act
Mr Anochie had not been warned prior to the notice sent to him on 30 June 2011 that triggered the present proceedings. This consideration is not relevant in his case.
CONCLUSION
The question I have ultimately to determine is whether Mr Anochie’s continued stay in Australia presents an unacceptable risk of harm to the Australian community. His crime was unquestionably very serious and he has almost certainly understated his involvement in it. However, I accept that his remorse is genuine and that he is motivated not to offend again. His exemplary prison record, the confidence in him that his approval for work release demonstrates, and the confidence shown in him by Mr Carr in particular, weigh in his favour.
It also weighs in Mr Anochie’s favour that there is real chance that he would be detained on return to Nigeria and that he would be prosecuted under Decree 33. If either was to occur, he faces a real chance of suffering torture, or cruel inhuman or degrading punishment, meaning his removal would put Australia in breach of its obligations under the ICCPR and the CAT. That is not the end of the mater, because it is only one of the factors to be considered, but it is a primary consideration.
Of the remaining considerations, none weighs positively against exercising the discretion in Mr Anochie’s favour, and one – being his capacity to contribute positively to the Australian community through employment - weighs marginally in his favour.
Taking into account all of the evidence, I am satisfied, on the balance of probabilities, that Mr Anochie does not present an unacceptable risk of harm to the Australia community if he is allowed to remain in Australia and that the discretion not to cancel his visa should be exercised in his favour.
I certify that the preceding 107 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member JF Toohey.
..........[sgd]..............................................................
Associate
Dated 24 April 2012
Date(s) of hearing 4 April 2012 Solicitors for the Applicant Christopher Levingston of Christopher Levingston and Associates Counsel for the Respondent Justin Smith
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