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

BHVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1467 (25 May 2020)
Division:GENERAL DIVISION
File Number(s):2020/1320
Re:BHVN
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:25 May 2020
Place:Brisbane

The decision under review is affirmed.
...............................[SGD].........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Subclass 801 Spouse (Permanent) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
25 May 2020
THE ISSUE BEFORE THE TRIBUNAL

BHVN (“the Applicant”) is a 43 year old citizen of Nigeria.[1] In November 2007, when he was thirty years old he moved to Australia. The most recent visa granted to him was a Subclass BS 801 Spouse (Permanent) visa (“visa”).[2]
[1] Exhibit G1, s 501 G-Documents, G2, page 54.
[2] Exhibit G1, s 501 G-Documents, G2, page 11.
On 17 February 2012, the Applicant was sentenced to imprisonment for 15 years, with a non-parole period of nine years, for attempting to possess a commercial quantity of unlawfully imported border controlled drugs (methamphetamine). He was also given a concurrent sentence of three years imprisonment for dealing in the proceeds of crime.[3]
[3] Exhibit G1, s 501 G-Documents, G3 pages 27 to 28; and G4, pages 29 to 39.
This led to the Respondent deciding to mandatorily cancel the Applicant’s visa under
[4]     Exhibit G1, s 501 G-Documents, G5, pages 40 to 44.
[5]     Exhibit G1, s 501 G-Documents, G6, pages 54 to 73.
[6]     Exhibit G1, s 501 G-Documents, G2, page 10.
s 501(3A) of the Migration Act 1958 (“the Act”) on 19 December 2018 on the basis that he failed the character test.[4] On 10 January 2019 the Applicant made representations as to why the decision should be revoked.[5] On 2 March 2020 the Respondent decided not to revoke its decision.[6]
The Applicant lodged an application with this Tribunal on 10 March 2020 seeking a review of the Respondent’s decision (“decision under review”) not to revoke the earlier decision.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[7] Exhibit G1, s 501 G-Documents, G1, pages 1 to 7.
The hearing of this application proceeded on 11 May 2020. The Applicant gave evidence by telephone. An interpreter was present by telephone but was not called upon by the Applicant. The Applicant’s wife gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant grew up in Nigeria. He identifies as a member of the Igbo tribe located in the south-eastern part of Nigeria. His father is deceased but his mother, four siblings and many relatives live in Nigeria. He did not claim to have suffered hardship in Nigeria.[8]
[8] Transcript, page 17, lines 4 to 10.
In October 2006 the Applicant commenced a relationship with his (now) wife.[9] His wife grew up in South Africa. She has lived in Australia for 32 years and is an Australian citizen.[10] According to the Applicant’s wife, the Applicant had to return to Nigeria in December 2006,[11] and she visited him there in early 2007.[12] He moved to Australia on a permanent basis a week after their daughter was born in November 2007.[13] He obtained employment at a magazine company and later established a business exporting second hand clothing.[14]
[9]     Exhibit G1, s 501 G-Documents, G8, page 86, paragraph 21.
[10]    Exhibit A2, Witness statement of Applicant’s wife.
[11]    Exhibit G1, s 501 G-Documents, G8, page 86, paragraph 21.
[12]    Ibid, paragraph 22.
[13]    Ibid, paragraph 23.
[14]    Ibid, paragraph 24; Transcript, page 45, lines 1 to 3.
In December 2009, two years after arriving in Australia, the Applicant was convicted of unlicensed driving[15] and fail/refuse to undergo a breath test.[16]
[15] Described as “Unlicensed for class, Class C/R/LR/MR – 1^st offence – see G3.
[16] Exhibit G1, s 501 G-Documents, G3, page 28.
In November 2010, the Applicant attempted to possess a quantity of 3716.8 grams (2973.4 grams pure) of methamphetamine that had been smuggled from South Africa by another person.[17] When police searched his home he directed them to nearly $40,000 in cash hidden behind his toilet. The Applicant pleaded not guilty and was convicted by a jury. The learned trial Judge described the offending, and the circumstances of the offending, in his sentencing remarks.[18] The salient parts for present purposes are reproduced below:
[17] Exhibit G1, s 501 G-Documents, G4, Exhibit R2, Respondent’s Supplementary Documents, S7, page 14.
[18] Exhibit G1, s 501 G-Documents, G4.
“[Name redacted] was charged on indictment that between 2 November 2010 and 17 November 2010, she did import a substance, being methamphetamine in a commercial quantity. She was found guilty of that charge by a jury after a very lengthy trial.
[The Applicant] was charged with attempting to possess a substance, being methamphetamine and the quantity being a commercial quantity. He also was convicted by the same jury. He was also convicted of another offence of dealing with money, namely $39,970 in cash that he believed to be the proceeds of crime. That is, in fact, a separate offence under the Commonwealth Criminal Code. Each of these offences is serious. The offence with which [name redacted] was charged is so serious that the Commonwealth of Australia has, in legislation, provided for the maximum penalty of life imprisonment. That same penalty applies to [the Applicant’s] offence of attempting to possess that substance. The offence of dealing with money that he believed to be the proceeds of crime, carries a maximum sentence of ten years imprisonment.
The role of each of these offenders is a very serious one, and what they were involved in, although not charged as such, in fact, a serious criminal conspiracy.
The facts at the trial revealed the following: some person or persons elsewhere in the world but probably in South Africa, arranged for a statue weighing hundred kilograms to be made, and then to have in the base of it a hollow created into which a plastic bag was placed that had the amount of drug that was imported into Australia placed in it. That was then sealed in that statute.
…
[Name redacted] has claimed that a brother of hers and another man either persuaded her or compelled her to become involved in going to South Africa and then arranging for a statue to be brought to Australia and then arranging to hand that over.
...
From there, she was given air tickets to come to Sydney. The statue was the subject of arrangements to go to Perth and then be brought across Australia from Perth. She met it in Sydney.
…
The statue was loaded into a taxi and taken out to Liverpool. It was placed on a driveway and she sat guard over it until it was picked up.
…
The role of [the Applicant] is a separate one altogether. Obviously the persons who sent the statue to Australia had to arrange for someone to pick it up. That person had to be someone living in Sydney who could take it to an appropriate place so that the drugs could be handed over. [The Applicant] arrived with a friend of his. That friend was originally charged in the trial and I directed his acquittal because, in my opinion, there was nothing to enable a Court to convict him beyond reasonable doubt.
The statue was taken from [name redacted] in a car by these two men. They called in to a place that hired-out equipment and hired-out a jackhammer, enquiring of the man who hired it out whether it would break open concrete. [The Applicant’s] intention was to smash open this statue and retrieve what was in it. He did not know, obviously, where this substance was...
Initially the statue was taken to his storage unit. In the storage unit there were items of cardboard backpacks and other things, and shoes and shoe lasts and shoe heels and various other things were found by police after testing, to have traces of drugs on them. That was significant in the case against [the Applicant], because of the third count, the possession of $39,970 in cash.
When the police came to his house to investigate, he told them that he did have nearly $40,000, and he took them to an s-bend behind the toilet in a bedroom. He produced the cash that was in a bag in that location. It was his house and his toilet, he knew where it was and there was every reason to suppose it was his. There was no reason to think it was anybody else’s.
The evidence enabled the jury to come to the conclusion that with the finding of that cash and evidence about drugs, traces of drugs, and evidence, also, which in my opinion was of some significance. But [the Applicant] went to a Western Union agent and transmitted money in varying amounts to various countries in the world using false names and false identifying factors.
The jury were entitled to conclude that the money was indeed the proceeds of crime, and they were entitled to conclude that the crime was his dealing in drugs from that storage unit. Now, whether he sold them or merely stored them, handed them on, how much was involved it was not possible to say. For how long he had been doing it, it is not possible to say.
As well as dealing in drugs, it is clear that the storage unit was used for a legitimate business purpose, and that was the obtaining of clothing, packing the clothing into large bundles, which were then to be sent to Nigeria. His wife has in a letter explains that that was a good business and she became involved in sending those clothes to Nigeria after he was arrested.
Of course the trial took many weeks and there was a great deal more evidence given than the scant evidence to which I have just referred…
…
Every day of the week in these courts people come to court charged with offences involving drugs. I have had such people this morning. Sometimes the offences are burglaries; breaking into people’s houses and stealing because the burglars are desperate to get money so they can buy drugs. Sometimes the crimes actually involve selling drugs, or being in possession of drugs for the purpose of friends and relatives coming along and sharing it. There are all sorts of crimes involving drugs; they are a major part of the work of this Court. Very many of the people involved in this are hapless victims, and the people who facilitate this trade should expect to be treated quite harshly.
Anybody who takes the trouble to come from another country to this country for the purpose of bringing in drugs like this will get no merciful findings from me. It is the greatest and worst type of invasion of our borders, to come to this country under false pretences and bring in drugs so that the lives of others can be blighted, and to bring them in so that the person bringing them in can make money out of it.
The amount of money [name redacted] was going to make is considerably more than many of the people that I have dealt with for bringing drugs into Australia… This lady was intending to get a significant sum of money. She was prepared to come and spread drugs into the Australian community.
…
In the case of [the Applicant], he is someone who has come to this country from Nigeria. He came here as a migrant, he has a family here, he has a wife and he has a young child. He has put forward an explanation to Probation and Parole Officers that he had gambling problems and other related problems. Again they provide, in my opinion, no reasonable basis for him to become involved in a crime of attempting to possess a commercial quantity of methamphetamine.
It is a very dangerous drug, it is a very nasty drug, and he was doing it for one reason and one reason only, he was going to make money out of it. It is not possible to conclude how much money he was going to make out of it, nor is it possible to conclude that the amount of money found in his bathroom had anything to do with it. It may have been intended by him as a sum from which to pay [name redacted], but there is no evidence he was given any instructions by anybody to pay her. There was no evidence that that was anything but money that was the proceeds of crime.
It cannot be concluded that he expected to get a huge sum of money from her, nor can it be concluded that he expected to sell this drug into the community himself, nor could it be concluded that he was going to be a wholesaler of it. All that can be concluded was that he intended to take the statue, break it open, find the drug, and after some testing - whether by him or someone else it is not known - that drug would be made available to someone for profit to him.
He has no previous convictions…It cannot be said he is a man of good character because in the period before he was arrested he was obviously involved in dealing in drugs in some way.
He came to this country because someone in this country considered that his application to live here should be accepted. Nigeria is a country which is a very troubled one; many of its citizens are subjected to violence and threats of violence and even warfare. Our community embraced him and offered him a home.
His answer to that - being embraced and being offered home - was to say, “too bad for you, I’m going to involve myself in major crime. That’s what I think of you”. And I think that requires a response that indicates that the courts of this country are not going to accept that type of conduct.
…
The circumstances involving the activities of these to (sic) people do not involve me being terribly moved by any form of compassion. If [the Applicant] had any compassion for his family he would not have involved himself in major drug crime….
I think too that another complicating factor in sentencing anybody for this offence is very many of the people who are put before court to plead guilty. Most of the people that have appeared before me have pleaded guilty. And obviously when people plead guilty you can provide a discount on sentence. Both of these people pleaded not guilty and maintained they were not guilty. [Name redacted] continues to maintain that. I can see no reason for any type of compassionate approach. It has to be looked at objectively, how serious it is, compared to other people.
In [name redacted]’s case I have decided that it warrants a sentence of 15 years imprisonment with a nine-year non-parole period… She is entitled to parole on 17 November 2019. At that stage she will be deported to Spain.
[The Applicant] in my opinion should receive precisely the same sentence for attempting to possess, and he should receive a three-year sentence for possessing cash that he believed to be the proceeds of crime. I intend to make both sentences concurrent…”
[Underlining added]
I note that the drugs originated in South Africa, which is the Applicant’s wife’s country of origin. However, I will proceed on the basis that this is merely a coincidence as there is no evidence before me that the Applicant’s wife or any person connected to her, other than the Applicant, was involved in any criminal activity.
The Applicant has now served his non-parole period and has been in Immigration Detention since November 2019. His family unit remains intact, and his wife and daughter communicate with him regularly.
The Tribunal materials include an undated and unsigned statement from the Applicant’s wife.[19] She said she and her daughter are “struggling from being apart” from the Applicant. Her statement includes the following passages:
“It is difficult to watch our child being separated from her father, but he always showed us lots of love and hugs which made me feel secure and happy at the same time. Considering [the Applicant] was going thru the same scenario being away from his family he never showed his sadness he remained positive and always had a smile on his face. I remember a time in 2011 when I suffered a mild stroke [the Applicant] had sent a chaplain to Westmead Hospital to visit and pray for my well-being. Another example [our daughter] is allergic to eggs, nuts, soy, wheat, asthma, Rhinitis and eczema, I would always be in the hospital or seeing specialist for her condition. [The Applicant] will be calling daily to check on [name redacted]’s wellbeing and how I am coping with taking care of her and her condition. My husband being incarcerated has never stopped caring for his family on the outside. We had daily telephone conversations and I couldn’t wait to speak to him I couldn’t wait to hear his voice and he would ask him how I’m feeling and to make sure I eat and not to get depressed to say calm not to stress because he loved and cared for us and he will always be there no matter what. To be honest I survived all these years with hearing [the Applicant’s] positive thoughts and knowing he was and always will be there for us.
[The Applicant] has to this day showed remorse for his criminal actions. He is constantly apologising for his actions…My observation is that [the Applicant] has changed while incarcerated with the way he thinks and has become a more positive individual…
[The Applicant] has always displayed his love and affection towards [name redacted]. Whilst visiting in various prisons [the Applicant] will read or draw with [name redacted]. She would always sit with him and he would constantly hug her and he would always say daddy loves you. [The Applicant] will call daily to ensure her homework is completed and that she is reading a book which he has always encouraged her to read daily. He always advised [name redacted] to please listen to your mum and not to disobey.”
[Errors and bolding in original]
[19] Exhibit A2, Witness statement of Applicant’s wife.
In relation to the possibility of moving to Nigeria with her daughter, the Applicant’s wife said:
“Upon [the Applicant’s] release I would like for our family to remain in Australia as neither [name redacted] nor I are willing to travel to Nigeria… I remember when I went on a holiday in 2007 in Nigeria to visit [the Applicant] and I can honestly say I cried on the 2^nd day as I could not live there. There is poverty, it is difficult to get a job unless you speak their multiple languages. Living in Australia for the past 32 years you get to appreciate our beautiful country and its opportunities. [Name redacted] and I are Australian citizens, I am not willing to uproot my family to move to a country where we will not survive financially and otherwise. I cannot remove my child from here school, her friends, cousins, family and her surroundings. This is what we both have been used to. We both have health conditions and we have our specialists in Australia taking care of us. I had medical issues when I was in Nigeria and I had to come back to Australia for treatment. I am currently waiting on an eye operation and an MRI for my heart condition, my heart pauses a few times a day, I currently have a pacemaker and specialist are looking at removing pacemaker with a defibrillator after findings on MRI. I have lung issues as well and had surgery last year testing for cancer, so which means I have less lungs for breathing as there were 4 pieces removed. I have suffered traumatically with my experiences in both South Africa and Nigeria. Going back would definitely bring back those awful, tragic traumatic experiences I have suffered. This will not be good for my health and state of mind.
… We want our family and child to be in a safe environment where there is no violence, killing, rape and kidnapping. The safety of my family is my first priority; I can speak for both [the Applicant] and I we are not willing to move to a third world country.”
[Errors in original]

The Tribunal materials also include a psychologist report that indicates that:[20]
·     the Applicant’s daughter is doing well despite her separation from the Applicant over the past nine years; and
·     the Applicant’s wife suffers from depression.
[20]    Exhibit G1, s 501 G-Documents, G8.
I will address this report, and the mental and physical well-being of the Applicant’s wife and daughter, in more detail in the discussions relating to “Primary Consideration B” and the “Other Considerations”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[21]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[22]
[21] [2018] FCAFC 151.
[22] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[23] I will address each of these grounds in turn.
[23] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant was sentenced to 15 years imprisonment with a non-parole period of nine years. There is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.[24] He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[24] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), paragraphs 4 and 8.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[25]
[25] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[26] and “Other considerations”.[27] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[26] The Direction, paragraph 13.
[27] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[28]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[29]
[28] [2018] FCA 594.
[29] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decisionmaker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, subparagraphs (a) to (i) in paragraph 13.1.1(1) of the Direction provide a list of factors to which decision-makers must have regard. This list is non-exhaustive - the Tribunal may take other relevant matters into account. The factors in that list that are relevant to this matter are:
·The sentence imposed by the Court for a crime or crimes; and
·The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
Imprisonment is normally imposed as a measure of last resort by sentencing courts when no alternative penalty is appropriate. The sentence of three years imprisonment for the proceeds of crime offence is substantial and reflects serious offending. This penalty is the lesser, by far, of the two sentences imposed on the Applicant.
The maximum sentence that could have been imposed on the Applicant for attempting to possess a commercial quantity of unlawfully imported methamphetamine is life imprisonment, indicating the seriousness with which the Australian community regards that type of offence. The sentence imposed for the offence committed by the Applicant is very high in terms of both the head sentence and non-parole period. His Honour pointed to several factors that led him to impose that sentence, including:[30]
·the maximum penalty available was life imprisonment;
·the Applicant was involved in a “serious criminal conspiracy”[31] and his role was a “very serious one”;
·methamphetamine is “a very dangerous drug, a very nasty drug”;
·people who facilitate the trade in illicit drugs should expect to be treated harshly;
·the Applicant committed the drug offence solely for financial gain;
·having been allowed to immigrate to Australia, the Applicant involved himself in major crime, and that requires a response by the courts that this type of conduct is unacceptable;
·the Applicant could not be treated as though he was of good character before he committed the drugs offence because in the period before he was arrested he was involved in dealing in drugs in some way; and
·the Applicant could not be given a discount on sentence for pleading guilty because he did not do so.
[30] Exhibit G1, s 501 G-Documents, G4, pages 29 to 39.
[31] In the ordinary meaning of the word “conspiracy”, not meaning that the offence of conspiracy was before the court.
It was contended on behalf of the Applicant that he was an “intermediate player in the ring, not a principle”.[32] However, there was very little reliable evidence of where the Applicant stood in the hierarchy in that particular criminal operation. The Applicant told the Tribunal that when he was arrested he told police that he “was supposed to receive it, put it in my storage with the other money that I received with the telephone with the all (sic) the transfers was given to me to put away” but they would not listen to him,[33] and that he told them the $39,970 was dropped off by the person with whom he was charged but the police did not listen.[34] He also told the Tribunal that he was told to pick up the statue.[35] The Applicant had legal representation during the criminal proceedings - he said his lawyer at the time told him not to speak further with the police and not to take the stand.[36] In his sentencing remarks, the learned sentencing Judge pointed out the many matters of fact that were unknown including what the Applicant was going to do with the drugs and what he expected to be paid for his role. After he had been found guilty, the Applicant could have, but did not, provide information about his role for the purposes of the sentencing proceedings.
[32]    Exhibit A5, Applicant's statement in reply, paragraph 1.3.
[33]    Transcript, page 41, lines 10 to 18.
[34]    Transcript, page 18, lines 9 to 14.
[35]    Transcript, page 40, line 27.
[36]    Transcript, page 41, lines 19 to 21; page 41, lines 23 to 28.
In these proceedings, the Applicant was told that he could put forward information that could help to explain or mitigate his offending.[37] He had legal representation and the opportunity to confer in private with his lawyer during the hearing.[38] I am not persuaded by the Applicant’s bare statements that he was following someone else’s directions and only supposed to store the drugs and other items. In the absence of detailed, coherent supporting evidence, I give it no weight. All that can be discerned about the Applicant’s role from the reliable evidence before me – being the sentencing remarks - is that he was a willing and trusted participant.
[37] Transcript, page 19, lines 36 to 38; page 20, lines 8 to 11.
[38] Transcript, page 22, lines 1 to 26.
The Applicant pointed to gambling debts and other problems by way of explanation of his offending at the time he was sentenced and before the Tribunal. He gave evidence that he had an addiction to poker machines[39] and he ran up a gambling debt of $50,000.[40] He said some of his debt was related to second-hand clothing.[41] He did not offer an explanation either in the documents he submitted to the Tribunal or in his oral evidence about exactly how his debt related to his offending or what his other problems were. In the absence of such information, I am only able to conclude that the debt put him under financial pressure. I have no basis to find that the Applicant was threatened or coerced into committing the offence, and he makes no such claim.
[39]    Ibid, lines 18 to 19.
[40]    Ibid, lines 21 to 23; page 23, lines 1 to 16.
[41]    Transcript, page 21, lines 21 to 25.
The methamphetamine was undoubtedly intended for circulation in the community. The Applicant said none of it was for his personal use.[42] It is well known that methamphetamine is a drug of dependence. It is well known that methamphetamine use is associated with a variety of harm to users and to the community including medical and psychological problems, psychotic episodes, unprovoked violence, and property and financial offences that are committed to fund drug use. However, I greatly appreciate the Respondent providing the Tribunal with an extract of the recent New South Wales Government’s Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants[43] (“Report”) which is a recent report that is based on information from credible sources. I note that “amphetamine-type stimulants” includes methamphetamine, and that methamphetamine can be converted into crystal methamphetamine. The extract of the Report includes the following observations:
[42]    Transcript, page 40, lines 38 to 39.
[43]    Exhibit R2, Respondent’s Supplementary Documents, S43, pages 162 to 174.
·drug use in general leads to the development of mental health symptoms through brain changes, by triggering an underlying condition or by exacerbating existing symptoms;[44]
·surveys of people who use amphetamine-type stimulants have found that such use can lead to anxiety, depression, panic attacks, mood swings, aggression, hallucinations, depression, paranoia and psychosis;[45]
·there is an association between psychotic symptoms and high-dose, long-term or dependent use of crystal methamphetamine;[46]
·there is evidence that around one-quarter of people who regularly use methamphetamine develop pre-psychotic symptoms, such as hearing voices occasionally, and around 10 to 15% of people develop psychosis;[47]
·adolescents, young adults, people from ethnic minority groups, and those with a history of psychotic disorder are more likely to experience psychotic symptoms when taking amphetamine-type stimulants. Some of these characteristics are associated with indicators of socioeconomic disadvantage. Researchers have noted that the high prevalence of mental health conditions in people who use methamphetamine may be in part due to their background characteristics, and not solely their drug use;[48]
·amphetamine-type stimulants can have a range of effects on a person’s physical health and well-being, including reduced immunity to infections, skin problems, stomach cramps, poor sleep quality, heart palpitations and chest pain;[49]
·amphetamine-type stimulants are also associated with seizures, liver damage and kidney conditions. Smoking crystal methamphetamine comes with the risk of acute and chronic lung problems;[50]
·the World Health Organisation has found that people who are under the influence of amphetamines are five times more likely to be involved in a fatal car crash and more than six times more likely to be injured in a crash[51]; and
·while the link between amphetamine-type stimulants and violence is complex, a causal link has been established between methamphetamine use and behavioural effects including reduced inhibition, hyper awareness and hypervigilance that may result in physical aggression. Legal Aid NSW reported that many clients who use amphetamine-type stimulants become involved in violent offences especially if their use is compounded by mental health issues and/or other drug use. Police reported that people who take crystal methamphetamine can be violent towards family, community members and the Police. There was significant evidence that crystal methamphetamine is likely to increase the frequency and severity of domestic and family violence incidents, more so than other drugs.[52]
[44]    Ibid, paragraph 1.73.
[45]    Ibid, paragraph 1.72.
[46]    Ibid, paragraph 1.74.
[47]    Ibid, paragraph 1.78.
[48]    Ibid, paragraph 1.76.
[49]    Ibid, paragraph 1.83.
[50]    Ibid, paragraph 1.85.
[51]    Ibid, paragraph 1.117.
[52]    Ibid, paragraphs 1.123, 1.124, 1.128 and 1.130.

The Tribunal is not limited to considering only the extract of the Report that has been provided - extracted sections of documents should be seen in their proper context. It is of great concern that, according to the “Forward” section of to the Report:
“Australia has the highest rate of amphetamine dependence in the world and, of all the world’s regions, Australasia has, by a substantial margin, the highest rate of all-cause deaths associated with amphetamine dependence.”
The Report also states:
“The reasons why people use ATS are complex, but the role played by social determinants such as socioeconomic disadvantage in engendering drug use is extensive. Significantly, the Inquiry finds that experiences of trauma, including of intergenerational trauma, appear to be almost universal among people with dependent ATS use.”
It appears, therefore, that methamphetamine is a prevalent drug that tends to be attractive and disproportionately harmful to people who are already at a disadvantage through: mental health conditions; having suffered trauma; socioeconomic disadvantage, or existing drug problems. Then there is the ripple effect of the unhealthy, dysfunctional, harmful and/or criminal behaviour that is associated with methamphetamine use. Methamphetamine causes misery to the families of persons who are addicted to it, harm to the victims of drug related crime, and it puts pressure on the community’s law enforcement resources, and medical and other support services. What is more, the harm that amphetamine-type stimulants can cause includes the death of the user or innocent community members.
The Applicant sought to make money by bringing into the Australian community a sizable quantity of this very harmful drug. In the hearing, the Applicant admitted that he knew the statue contained illegal drugs, although he denied knowing the drugs were methamphetamine, and he admitted that he knew that he was committing a serious offence.[53] The Applicant claimed in an undated letter[54] to the Tribunal that he was “naïve and ignorant of what drugs can do to people and the effects (sic) it has on the community”. I do not accept that this is a truthful statement. The Applicant was 33 years old at the time of the offence, he had lived in Australia for three years and he was married to a woman who had lived here for over twenty years at that time. He had the intelligence and awareness to run a business in Australia. For decades, there have been regular reports in the Australian media about drug related crimes and deaths. It is implausible that the Applicant was unaware of the harm caused by illicit drugs. Accordingly, I find that the Applicant knew he was involved in bringing a harmful drug into the community.
[53]    Transcript, page 40, lines 21 to 33.
[54]    Exhibit A4, Applicant’s statement.
In this case there has been an escalation in the Applicant’s offending. His first offence was a traffic offence, being unlicensed driving and refusal/failure to submit to a breath test. That is not an insignificant offence - it suggests a lack of respect for the laws that govern the community that accepted him only two years before. However, he then engaged in illegal activity that involved drugs, nefarious money transfers and unexplained cash in the amount of nearly $40,000. The exact nature and extent of that activity is unknown. The extent of it that was captured by the proceeds of crime charge was punished with a sentence of three years imprisonment. The Applicant’s offending then escalated again with his attempt to possess 3.7kg of unlawfully imported methamphetamine. There is a steep trend of increasing seriousness in the Applicant’s offending.
Subparagraphs (a) to (c) and (f) to (i) of paragraph 13.1.1(1) of the Direction do not apply in this matter. In particular, the Applicant’s offending did not involve violence, of crimes committed against vulnerable people within the meaning of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction or public officials in the course of their employment.
Even so, applying paragraph 13.1.1(1) of the Direction, the nature and seriousness of the Applicant’s conduct to date weighs heavily against revocation of the reviewable decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The learned sentencing Judge made a finding that, before the Applicant attempted to possess 3.7kg of methamphetamine, he had been involved in dealings with illicit drugs. His Honour thought the jury’s verdict in relation to the proceeds of crime charge was based on that. It was contended on behalf of the Applicant that the Tribunal should not take His Honour’s finding into account in its assessment of the risk of re-offending or as an indication of further offending.[55] However, any prior involvement the Applicant had with illicit drugs is cogent to both of those matters. The Tribunal is not able to make a finding that is inconsistent with a finding that underpins a conviction or sentence that grounds the decision-maker’s jurisdiction.[56] In any event, the learned sentencing Judge, having heard and seen all of the evidence in the trial, was in the best possible position to make findings of fact and to discern what findings of fact the jury’s verdicts were based on. I accept that the Applicant was involved in drug-related illegal activity before his attempt to possess the methamphetamine. I must now take that into account as far as it is relevant. Accordingly, the harm from further offending includes the circulation of illicit drugs within the Australian community.
[55] A5, Applicant’s statement in reply, paragraph 1.3.
[56] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202. The convictions and sentences imposed partly relied on a finding that the Applicant was involved in prior drug offending. Those convictions and sentenced precipitated the mandatory cancellation of the Applicant’s visa under s501(3A) of the Act, leading to the Applicant making representations under s 501CA(3)(b) of the Act thus enlivening the Minister’s power under s 501CA of the Act to make the decision under review.
The Applicant was convicted of attempting to possess an unlawfully imported border controlled drug, i.e. he was involved in a criminal operation to bring illicit drugs into Australia. Assessing the harm to the community from another failed attempt (which would cause no harm) would be an overly technical and unhelpful approach. I consider that the Direction calls for a sensible assessment of the harm to the community from further offending and, in my view, that means the harm from further efforts, which may be successful, to bring illicit drugs into the Australian community.
I have canvassed the harm that methamphetamine is capable of causing in the community. That includes, but is not limited to, damage to the physical and mental health of users, misery for their families, property offences, violence against community members, and road fatalities. The harm to the community from further offending, therefore, includes loss and damage to property, psychological harm, and serious – potentially catastrophic - injury.
The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
In his request for the revocation of the decision to cancel his visa the Applicant stated “I will not re-offend because I have honestly learn (sic) my lesson and committed to changing for good.”[57]
[57] Exhibit G1, s 501 G-Documents, G6, page 67.
In an undated letter provided to the Tribunal, the Applicant said:
“I take full responsibility for my involvement with drugs. There are no excuses for my actions. I acknowledge that I’ve made the wrong choice and I deserve the punishment that I received. I am very sorry for what I did.
Ever since residing in Australia I have worked hard to open a business that export used clothing to Africa. I’m a family oriented person, I have a loving wife and a beautiful daughter and don’t want them to ever have to experience or go thru the ordeal due to my actions.
I recognize [sic] that I have been a bad role model to my daughter. [Name redacted] was only 3 when I was incarcerated and she is now 12 years old and this is my chance to be a great role model moving forward. I want to provide to her my guidance and protection as I was absent for the past 9 years.
Being arrested by federal police 9 years ago was a very traumatic and embarrassing experience for me. I was so ashamed of myself when my daughter, my wife and my in laws saw me in handcuffs. I could see the shock and disappointment in their eyes. I felt the pain and humiliation that I have caused them due to my arrest.
In prison, I did a lot of research on the effects of drug abuse and addiction and the harms it does to the community. I have seen firsthand the effects of drugs and what it can do to a person and that’s the path I do not want to go down. i was naïve and ignorant of what drugs can do to people and the effects it has on the community. Most prisoners I met have all had drug-related crimes. I now understand the consequences and how drugs destroys families, the individual and the community
Prior to being incarcerated I had a problem with gambling and cannabis but being in jail has taught me that gambling and smoking cannabis is not the way of life, all I want to do is be a good father and a good husband moving forward…
…
My wife has extensive health issues. She has an ongoing heart and lung condition and has lost partial vision on her left eye. Whilst being incarcerated she has had a few surgeries and is currently waiting to have more done in the next few months. I have not been there to support her and look after my daughter during this time. She does need ongoing support and priority on when I am released will be to support her and help with taking care of our child.
I would like to say that I am very remorseful for my actions that led to my incarceration. I am deeply sorry Australia has accepted me into the country so I could have a better life and given me which unities to better myself as an individual. Moving forward all I want is to be a hard working man who is there to support his family. I have to point out that I am honestly ashamed of myself for putting my family and the community in danger in fact words cannot explain how sorry I am. I wish I can take it all back... I have been rehabilitated and made positive changes to my life so I can be a better person when I am released into the community.”
I accept that the Applicant regrets being imprisoned and separated from his family. I accept that he has concerns for his wife’s health and wishes to support her. As I have stated above, I find his claim that he did not realise the harm that drugs could cause to be disingenuous. I have some reservations with respect to his claim to be rehabilitated given some of his conduct while incarcerated and seeing as his ability to abstain from cannabis use and from gambling (to which he partly attributed his offending) has not been tested in the wider community.
During his period of incarceration, the Applicant completed one rehabilitation course, “Getting Smart”, in 2012. He undertook this course to deal with his addictions to cannabis and gambling.[58] Prior to his incarceration he used to use cannabis four times per day.[59] He asked to do more rehabilitation programs, however, was ineligible because of his low or medium security classification.[60] I accept that a low or medium security classification can render a prisoner ineligible for rehabilitation courses and I am satisfied that the Applicant unsuccessfully applied to undertake further rehabilitative courses.
[58]    Transcript, page 21, lines 10 to 16.
[59]    Transcript, page 24, lines 7 to 9.
[60]    Transcript, page 34, lines 44 to 47.
The Applicant told the Tribunal that he had done a lot of good things while he was in gaol, for example he had stopped a lot of fights and made peace between people, counselled younger prisoners to do the right thing and stay off drugs, and generally obeyed the rules.[61] There is some evidence before me of the Applicant having prohibited substances in prison on a few occasions which I will come to later, but apart from that there is no evidence of disobedience or other types of unacceptable behaviour. This is impressive given the length of time he has spent incarcerated. I accept that the Applicant has generally obeyed the rules while incarcerated and that he has sought to make a positive contribution in some respects while incarcerated.
[61] Transcript, page 34, lines 1 to 34.
However, his infringements involving prohibited substances cannot be overlooked. In 2014, the Applicant failed a drug test because of the presence of Buprenorphine in his urine.[62] He was subject to disciplinary proceedings and pleaded not guilty.[63] He wrote, on the Inmate Discipline Form, “I don’t take drugs. I have been around other inmates who have been using drugs”.[64] However, he was found guilty and punished.
[62]    Exhibit R2, Respondent’s Supplementary Documents, page 65 and Exhibit G1, s 501 G-Documents, G13, page 112.
[63]    Exhibit R2, Respondent’s Supplementary Documents, page 67.
[64]    Ibid, page 69.
The Applicant told the Tribunal he had been having “family issues” that caused him to have trouble sleeping. He requested a sleeping tablet and was told that he would have to see a doctor, however, that did not occur. He was given what he thought was a sleeping tablet by another inmate[65] around a month or a month and a half later.[66] This explanation is not consistent with his denial at the time of the drug test. When this was put to him, he said he did not consider the tablet he had taken to be a drug and, therefore, he thought the test result was incorrect.[67] When asked why he thought that being around other inmates who used drugs could cause him to fail a drug test he responded that he did not know.[68] The Applicant was not taking any other medication at the time.[69] He maintained that, despite this, it did not occur to him that the tablet he had taken could have caused him to fail the drug test.[70] I do not accept this. I find that the Applicant ingested a tablet that he knew was not prescribed to him and that he was not forthcoming with the prison authorities about it.
[65]    Transcript, page 25, lines 30 to 40.
[66]    Transcript, page 27, lines 25 to 28.
[67]    Transcript, page 25, line 46 to page 26, line 36.
[68]    Transcript, page 28, lines 36 to 41.
[69]    Transcript, page 27, line 8.
[70]    Ibid, lines 10 to 17.
Further, while the Applicant put forward his failed effort to obtain a sleeping tablet from the prison authorities as his reason for taking the Buprenorphine, he did not claim to have made any follow up request in the several weeks between asking for a sleeping tablet and taking the Buprenorphine. I note that he told the Tribunal that, in his current situation, he feels that he needs to see a psychologist because he has been in prison too long and he said “I been asking for it”[71] which implies that he has made a continuous effort. However, upon further questioning, he conceded that he had only made one request to see a psychologist.[72] I have formed the impression that the Applicant has a tendency to exaggerate his efforts to obtain assistance from prison or detention centre authorities and to paint himself as a victim. I do not accept that he took the Buprenorphine because he could not obtain a sleeping tablet from the prison authorities.
[71]    Transcript, page 38, line 42.
[72]    Transcript, page 39, lines 36 to 44.
In January 2017, the Applicant was observed by a prison officer with his hand in his pocket, looking suspicious. The officer called to him twice but he walked away. The prison officer followed and saw the Applicant hand something to another prisoner. The other prisoner produced the item which was a cookie and a piece of paper with .225g of tobacco in it. The prison officer asked the Applicant what it was and he did not answer.[73] The Applicant was subject to disciplinary proceedings, he pleaded guilty and he wrote on the Inmate Discipline Form “I’m not going to do it again”.[74] The Applicant told the Tribunal that “an inmate gave it to me and an officer seen it”.[75] This explanation is at odds with the contemporaneous typed report by the prison officer which states that the Applicant handed the tobacco to another inmate. I prefer the contemporaneous documentary evidence of the prison authorities and I find that the Applicant did not provide a full and truthful explanation to the Tribunal.
[73]    Exhibit R2, Respondent’s Supplementary Documents, page 85.
[74]    Ibid, page 86.
[75]    Transcript, page 30, lines 3 to 4.
In April 2018, the Applicant was found in possession of a much larger amount of tobacco (121g.) concealed between two pairs of underwear that he was wearing.[76] He told prison authorities that “Someone gave it to me at work”[77] and he pleaded guilty.[78]
[76]    Exhibit R2, Respondent’s Supplementary Documents, page 102.
[77]    Ibid, page 101.
[78]    Ibid, page 104.
The Applicant told the Tribunal that in 2014 the prisons stopped allowing prisoners to purchase cigarettes and that it only provided nicotine patches for one week.[79] The Applicant admitted that he continued to smoke when he could obtain tobacco after 2014.[80]
[79] Transcript, page 25, lines 6 to 14.
[80] Transcript, page 30, lines 14 to 15
In the Applicant’s Statement in Reply, it was conceded that he had used marijuana in custody. He told the Tribunal that in November 2019, he thought he was going to be released on parole but was then notified that he would not. He was distraught and somebody gave him cannabis to calm him down.[81] He had asked to see a psychologist but nobody came.[82] A prison officer stayed with him, comforting him, for an hour.[83]
[81]    Transcript, page 23, lines 21 to 29.
[82]    Transcript, page 24, lines 22 to 25.
[83]    Transcript, page 36, lines 42 to 44.
In addition to the above infringements, the Applicant was disciplined for damaging a bedsheet and being involved in a fight. He explained that he had bought the sheet to block light shining in his window at night and needed to tear it to fit it to his window. He explained that the fight was the result of a white supremacist inmate targeting him. I accept these innocent explanations.
It was contended on the Applicant’s behalf that his infringements do not indicate “disregard to law or authority”.[84] I respectfully disagree. The infringements demonstrate that the Applicant is prepared to break the rules with respect to banned substances to solve his problems – inability to sleep, addiction, emotional distress - and that he is prepared to engage in deceptive conduct. Further, the Applicant seemed unwilling to fully own his behaviour; he painted himself as a passive participant in wrongdoing, saying the banned substances were offered to him or given to him.
[84] Exhibit A1, Applicant’s SFIC, page 3, paragraph 5.

The Applicant gave evidence that he has overcome his addictions to gambling and cannabis while incarcerated. It appears that it is possible to access cannabis in prison, and in nine years there is only one instance that the Tribunal is aware of involving the Applicant using cannabis. On that basis, I accept that the Applicant is no longer dependent on cannabis.
The Applicant’s gambling addiction prior to his incarceration was very specific: he played poker machines. Poker machines differ from other forms of gambling such as sports betting or more active games of chance. It was contended on the Applicant’s behalf that there are forms of gambling available in prison. When the Applicant was asked if there was anything similar to poker machines in prison or in Immigration Detention, unsurprisingly he answered “no”.[85] Accordingly, in prison and Immigration Detention the Applicant has not been exposed to anything that he considers to be akin to the specific form of gambling to which he was addicted. His ability to avoid falling back into a poker machine addiction has not been tested in the wider community where poker machines are legal and widely available. The Applicant appears to recognise this. He told the Tribunal that if he is released he will need ongoing support. He said:
“I haven’t gambled in what almost 9 ½ years. But any support that can help me out there to stay on the right path, that’s why I when they asked me the question I told them yes, you know, because I know is going to come up and I knew I needed support, ongoing support. I have been asking for it for a long time and I wasn’t getting one.”[86]
[85] Transcript, page 40, lines 13 to 14.
[86] Transcript, page 38, lines 25 to 43.
It is positive that the Applicant recognises that his addiction to poker machines may be unresolved and that he intends to get rehabilitative help in relation to gambling and cannabis. However, if he is unsuccessful in that, there is a risk that he will re-offend given that he sought to explain his offending on the basis of his gambling debt (and other problems) and while he has been incarcerated he has demonstrated a preparedness to break the rules.
If the Applicant is returned to the community he will live with his wife and child, and he will seek to find employment. Normally these would be protective factors. However, living with his wife and child and running a business did not stop him from offending previously.
The Applicant has six more years of parole. As part of his parole he would be put on notice that if he were charged with an offence he would be returned to gaol. He may be subject to a ban on entering venues where there are poker machines (which would be hard to police) and he would have the support of a parole officer. Parole could serve as a protective influence.
The Applicant has strong reasons to stay out of gaol and remain in Australia. He has generally stayed out of trouble during his nine years of incarceration. He is no longer addicted to cannabis. He has a supportive family and he will be on parole for several years if he is returned to the wider community. He recognises that he might need help to avoid addiction to cannabis and gambling in the future. His gambling issues are unresolved and his ability to abstain in the wider community has not been tested. The four infringements while incarcerated demonstrate that he is prepared to, on occasion, break the law and/or the rules to solve problems while not fully accepting responsibility for his conduct. Further, the tobacco infringements involved him covertly dealing with a contraband substance which is similar in nature – but not in seriousness – to his index offending. Accordingly, I am not satisfied that, as contended on behalf of the Applicant, there is only a small and insignificant risk of re-offending. I am not confident that his risk of re-offending is small, much less insignificant. I consider the risk of re-offending to be somewhere between low and moderate.
Conclusion: Primary Consideration A
Given the very serious nature of the Applicant’s offending to date, the very serious nature of harm from further offending and the risk of re-offending, Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. The relevant factors in this matter include:
·The nature and duration of the relationship between the child and the person;
·The extent to which the person is likely to play a positive parental role in relation to the child;
·The likely effect that any separation from the person would have on the child;
·Whether there are any other people who fill parental roles with the child; and
·Any known wishes of the child.
The Applicant daughter was born in late 2007.[87] She will turn 13 later this year. From her birth until she was three years old the Applicant and his wife fulfilled parental roles in relation to her. The Applicant’s wife described the Applicant having a close bond with their daughter during that time.[88] For the last nine years of the Applicant’s daughter’s life, the Applicant has been incarcerated. She cannot recall living with the Applicant but has memories of them playing together.[89] After the Applicant was incarcerated, his wife and daughter visited him regularly when he was in accommodation that was not too far away.[90] The Applicant speaks with his daughter frequently.[91] The Applicant’s wife said that she and her daughter are struggling from being separated from him, and that his incarceration has made it difficult financially.
[87]    Exhibit G1, s 501 G-Documents, G6, page 64.
[88]    Exhibit G1, s 501 G-Documents, G8, paragraph 51.
[89]    Ibid.
[90]    Ibid, paragraph 26.
[91]    Ibid, paragraph 55
The Applicant’s wife currently fulfils the primary parental role in relation to their daughter. The Applicant’s wife and daughter live with the Applicant’s mother-in-law.[92] The Applicant’s daughter suffers from asthma, eczema, rhinitis and some severe food allergies.[93] Those conditions are managed by the Applicant’s daughter with help from his wife.[94]
[92]    Transcript, page 53, line 28.
[93]    Transcript, page 44, lines 15 to 18, Exhibit A2, Witness statement of Applicant’s wife.
[94]    Ibid, lines 20 to 25.
I accept that it is not feasible for the Applicant’s wife and daughter to relocate to Nigeria or even visit there, and that they will not. Therefore, non-revocation means that the Applicant’s daughter will be separated from the Applicant indefinitely.
The Applicant’s wife and daughter were interviewed by a psychologist, Dr Emily Kwok, in August 2019. Dr Kwok interviewed the Applicant’s daughter for 30 minutes and the Applicant’s wife for two hours.[95] The Applicant’s daughter told Dr Kwok that she would feel happier if the Applicant was at home so “we can do the normal things families do”, that she would like the Applicant to attend parent teacher nights, dance concerts and sports games, and she would like him to be around when she starts high school.[96]
[95] Exhibit G1, s 501 G-Documents, G8, paragraphs 2 to 3.
[96] Ibid, paragraph 55.
Dr Kwok opined that the Applicant’s daughter:
“[A]ppears to be a well-adjusted child who is functioning, and indeed excelling, at home, school and in her various extra-curricular activities. She also impressed as a sociable child who is eager to make friends and is well liked by her teachers. Her regular contact with [the Applicant] through telephone and, sometimes, visits at the prison have also been helpful in reducing the feelings of insecurity that are common in children who are separated from a parent.”[97]
[97] Ibid, paragraphs 59.
Based on Dr Kwok’s assessment, I am satisfied that the Applicant’s daughter is coping well with being separated from her father and having a parent-child relationship that is limited to visits and long-distance communication. Any risk to the well-being of the Applicant’s daughter appears to come (unintentionally) from the Applicant’s wife. As Dr Kwok stated:
“Notwithstanding [the Applicants daughter’s] adjustment to the stressful situation, children of incarcerated parents are more likely to be exposed to adverse childhood experiences than their counterparts and, for [the Applicants daughter] her adverse experience is her exposure to [the Applicant’s wife’s] emotional distress. It is well documented that maternal depressive symptoms is a risk factor for children’s depressive symptoms. Furthermore, the chronicity of maternal depression (noting that [the Applicant’s wife] suffers from a chronic form of depression) also predicts externalising symptoms in youth over time. I observed that [the Applicant’s wife’s] depression and anxiety have contributed to [the Applicants daughter’s] anxiousness. More specifically, [the Applicants daughter] appeared to be aware of, and is sensitive to, her mother’s psychological distress. She was also worried about any deterioration in [the Applicant’s wife’s] physical health since her mother is her only parent while [the Applicant] has been in custody and will remain her only parent in Australia if he is deported.”[98]
[98] Ibid, paragraph 60.
It is apparent that Dr Kwok believed that the Applicant’s wife had not received treatment for her mental health and that she might be resistant to such treatment.[99] This belief evidently informed her concerns about the impact of the Applicant’s wife’s troubles on the Applicant’s daughter.
[99] Ibid, paragraph 57.
The Applicant’s wife had a minor stroke in 2011. She told the Tribunal that in 2016, she suffered some health complaints upon her return from a visit to South Africa: she started to lose part of her vision in her left eye and she was diagnosed with tuberculosis.[100] While she appears to have recovered from tuberculosis, there are ongoing problems with her lungs and her lung capacity has been diminished by parts of her lungs having been removed for testing, causing shortness of breath.[101] The exact problem is unknown but sarcoidosis is suspected.[102] She also has sleep apnoea and requires a machine to sleep.[103] The Applicant’s wife has a pacemaker.[104] She used to be a smoker, however, she told the Tribunal she stopped smoking around two years ago.[105] She is overweight but has difficulty finding time to exercise. She eats a healthy diet.[106]
[100] Transcript, page 54, lines 1 to 14.
[101] Transcript, page 55, lines 28 to 32
[102] Ibid, lines 13 to 25.
[103] Ibid, lines 30 to 35.
[104] Exhibit A2, Witness statement of Applicant’s wife.
[105] Transcript, page 55, lines 36 to 39.
[106] Transcript, page 43, lines 30 to 45.
The Applicant’s wife told the Tribunal that she has been seeing a psychologist since 2016 when her father died and she could not cope.[107] She told Dr Kwok she had felt depressed for nine years since the Applicant was incarcerated.[108] She told the Tribunal the treatment she is currently receiving is to treat her depression.[109] She thinks it is helping, and she believes she needs ongoing help and that it will take some time for her to get better.[110]
[107] Transcript, page 56, lines 9 to 14.
[108] Exhibit G1, s 501 G-Documents, G8, paragraph 33.
[109] Transcript, page 56, lines 23 to 24.
[110] Ibid, lines 40 to 45.
There is no evidence from the Applicant’s wife’s treating psychologist before the Tribunal. Dr Kwok interviewed the Applicant’s wife and daughter for only a short time each and the reliability of her assessment is necessarily limited by that fact. Her report appears to have been commissioned for the sole purpose of these proceedings. Further, I am not confident that the Applicant’s wife gave full and frank information to Dr Kwok. For example, Dr Kwok did not know she was already receiving treatment for depression despite the Applicant’s wife’s mental health being a topic of discussion: she reporting feelings of depression to Dr Kwok, and Dr Kwok asked her how she managed her stress.[111] I am not satisfied that the Applicant’s daughter is in the dire predicament that Dr Kwok described as her opinion was partly based on an incorrect belief that the Applicant’s wife’s mental health was untreated and might continue to go untreated. I am, however, satisfied that the Applicant’s daughter is shouldering some of the burden of her mother’s medical and psychological conditions, as any loving child of her age would, and that she will continue to do so. Her emotional load would likely be lessened by the Applicant returning to the family and providing support to her mother and to her. In addition, his return could help to alleviate some of his wife’s depression given his incarceration was a major cause of it.
[111] Exhibit G1, s 501 G-Documents, G8, paragraphs 33 to 34.
The Applicant intends to get a job. He has shown himself to be resourceful and I am confident that he would find work and therefore be in a position to contribute financially to the family unit.
It was contended on behalf of the Applicant that if his wife’s health worsens, his daughter would have no suitable family carer to take over the role currently undertaken by his wife.[112] The Applicant’s daughter lives with her mother and grandmother. She has an uncle, with his own family, who visits often.[113] No evidence was put forward with respect to whether or not the parental role could not be fulfilled by the Applicant’s daughter’s grandmother or uncle. There is no evidence either way. The Applicant’s daughter is already reasonably independent: she does household chores, makes her own lunch, walks to school by herself and attends sporting activities without her mother’s help.[114] In any event, despite the Applicant’s wife’s medical conditions and diagnosed depression, she works full-time (although her hours have been reduced temporarily because of the COVID-19 pandemic)[115] and none of the voluminous medical evidence provided to the Tribunal contains a prognosis that her health will deteriorate. I am not satisfied that if the Applicant is deported there will be no-one to provide the level of parental support that his daughter needs.
[112] Exhibit A5, Applicant’s statement in reply, paragraph 1.7.
[113] Transcript, page 44, lines 1 to 14; page 53, line 37.
[114] Exhibit G1, s 501 G-Documents, G8, paragraphs 43 to 44.
[115] Transcript, page 53, lines 21 to 26.
The Applicant was an engaged parent before he was incarcerated and since then he has maintained frequent communication with his daughter. I am satisfied that he loves her and is committed to maintaining their relationship. If he were returned to the wider community, he could play a positive parental role for the five more years that she will be a minor. If the Applicant is returned to Nigeria, his daughter will be able to continue to communicate with him by phone and other electronic means and, in that way, he will continue to be involved in her life. However, that is not the same as having him physically present in her life.
In conclusion, the Applicant’s daughter is doing well despite the Applicant’s absence, but her life would be better if he were in the family home.
Conclusion: Primary Consideration B
I am satisfied that revocation of the reviewable decision would be in the best interests of the Applicant’s daughter. Applying the relevant factors contained in paragraph 13.2(4) of the Direction, I find this consideration weighs moderately in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[116]
[116] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant was 30 years old when he moved to Australia;
·he does not claim to have suffered any hardship in Nigeria or Australia, although he had an addiction to poker machines that resulted in a $50,000 debt;
·within only three years of moving here he committed an offence for which the maximum penalty is life imprisonment, and he was caught dealing in the proceeds of crime;
·his offending involved a joint effort to bring a substantial quantity of illicit drugs into the Australian community;
·prior to this offending, he had been dealing in some capacity with illicit drugs;
·he was only able to make a positive contribution to the Australian community for three years. He has done little in that regard. Running a business – presumably paying taxes - and raising a child with his wife can be regarded as modest contributions. In his request for revocation of the decision to cancel his visa, he said that he has done some volunteer work looking after animals, maintaining heritage and feeding homeless people. However, these activities were done as part of prison programs while he was incarcerated so I give them only a modest measure of weight;[117]
·there is at least a low risk that he will re-offend;
·if he does re-offend, it the harm to the community is likely to include serious harm;
·he has been of generally good behaviour in prison but shown a preparedness to break the rules concerning banned substances; and
·his absence from Australia will adversely impact his wife and daughter.
Conclusion: Primary Consideration C
[117] Exhibit G1, s 501 G- Documents, G6, page 68.

Only three years after moving here, the Applicant involved himself in a scheme to bring a commercial quantity of a harmful, illicit drug into the Australian community. It is difficult to think of a clearer example of someone breaching the trust of the Australian community. The harm, should the Applicant re-offend, includes serious, potentially catastrophic, harm such that the Australian community would expect that he would not hold a visa. Even taking into account the relevant factors in the Applicant’s favour, Primary Consideration C weighs heavily in favour of non‑revocation of the decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
“(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a Protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501 E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.”
The Tribunal is under a duty to give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he will face if returned to Nigeria in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration.[118]
[118] Minister for Home Affairs v Omar [2019] FCAFC 188.
In his request for revocation of the decision to cancel his visa, the Applicant stated that he feared hardship and “possibly going back to prison” if he was returned to Nigeria.[119] He claimed to be of the Igbo tribe in south-eastern Nigeria. He said they fought the government of the day in the Biafran War, and that same government retains power today which makes him vulnerable to being targeted by the Nigerian authorities. He said the Nigerian government would know which part of Nigeria he is from because his name is not a Muslim name.[120] He said they “pick and choose” whether to apply the law.[121] He said this makes him more susceptible to being imprisoned under a Nigerian law known as Decree 33, under which persons who have been convicted of certain offences overseas can be prosecuted and imprisoned.
[119] Exhibit G1, s 501 G-Documents, G6, page 70.
[120] Transcript, page 45, lines 15 to 21.
[121] Transcript, page 44, lines 29 to 39.
According to a 2018 country information report by the Department of Foreign Affairs and Trade (“DFAT Report”): [122]
[122] Exhibit R2, Respondent’s Supplementary Documents, S42, page 142.
·the Igbo people constitute 18% of Nigeria’s population and are one of the most politically influential groups in Nigeria;
·they are able to participate in the political, social and cultural life in Nigeria without interference; and
·like all Nigerians, they are able to move freely within Nigeria; they have faced attacks from Boko Haram in the middle-belt and northern states of Nigeria, but there are no recent reports of Igbo people specifically being targeted due to their ethnicity.
The report does not indicate that the Nigerian authorities discriminate against, or target, Igbo people. The DFAT Report is recent and I consider it to be reliable.
The Applicant gave evidence that his family in Nigeria have the same surname as him,[123] and none of them have been imprisoned. Further, he said that he did not have any problems with respect to his business exporting goods to Nigeria.
[123] Transcript 45, lines 23 to 24.
I am not satisfied that there is a real risk that the Applicant will be discriminated against or targeted by the Nigerian authorities because he is of the Igbo tribe if he returns to Nigeria.
Decree 33 of Nigeria’s National Drug Law Enforcement Agency Act 1990 provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas, including those with drug convictions. The minimum sentence is five years imprisonment.[124] The DFAT Report states that:
[124] Exhibit R2, Respondent’s Supplementary Documents, S42, page 160.
“In practice, DFAT understands the Nigerian government has rarely given effect to the Decree. The most recent application DFAT is aware of was in 2005.”
[Underlining added]
The Report goes on to say:
“DFAT assesses that people who returned to Nigeria are unlikely to face adverse attention on their return. Thousands of Nigerians enter and leave the country every day. In 2016 and 2017, thousands of involuntary returnees or failed asylum seekers were returned from the United Kingdom and Europe. DFAT is not aware of any adverse attention or arrests relating to these returns.”[125]
[125] Ibid.
It was contended on behalf of the Applicant that:
“The report prepared by DFAT does not take into consideration repatriated or deported Nigerian nationals who have been convicted of drug offences in other countries and returned to Nigeria, rather, DFAT makes a finding on failed asylum seekers and fails to identify those who have been charged with drug and or other serious offences in other countries that may fall victim to the application of Decree 33 on repatriation to Nigeria.[126]
[126] Exhibit A1, Applicant’s SFIC, paragraph 10(d) to (e).
Consequently, DFAT writes that it is “not aware” and that in the time period from 2016/17, involuntary returnees or failed asylum seekers were returned from the United Kingdom and that “thousands of Nigerians enter and leave the country every day”. However, taking into account the fact that should the Applicant be returned to Nigeria, the Department of Home Affairs would have to apply for a travel authority for the applicant and show the relevant Nigerian authorities as to why the applicant is being repatriated and inevitably the criminal offending of the applicant will be disclosed to the Nigerian authorities, therefore putting the applicant at risk of prosecution under Decree 33.”[127]
[127] Ibid, paragraph 10(e).
First, the preface to the DFAT Report states:
“This report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources in Nigeria. It takes into account relevant and credible open source reports, including those produced by United Nations departments, US Department of State, UK Border Agency, the European Asylum Support Office (EASO), the World Bank and the International Organisation for Migration. DFAT consulted recognised human rights organisations such as Amnesty International, Human Rights Watch, and international non-governmental organisations such as Transparency International and the International Committee of the Red Cross, as well as Nigerian governmental and non-governmental organisations and reputable news organisations.”[128]
[128] Ibid, page 133.
It follows that none of those sources have provided a credible report to DFAT that Decree 33 has been applied since 2005. I consider the fact that DFAT is not aware of Decree 33 having been applied since 2005 to be very strong evidence that it has not been applied since 2005.
Second, it is not apparent to me why the process of repatriating the Applicant would necessitate the Australian authorities disclosing to the Nigerian authorities the reason for his repatriation. It is reasonable to infer that the Applicant, being a Nigerian citizen, can renew his Nigerian passport and enter Nigeria in the same way any other Nigerian citizen would. No evidence to the contrary was put forward. Nor was any evidence put forward to the effect that the normal process for renewing a Nigerian passport or returning to Nigeria requires disclosure of overseas convictions. In fact the reported practice of the United Kingdom government in 2013 (see below) suggests that it is not necessary to disclose overseas convictions when repatriating a Nigerian citizen.
The Applicant referred the Tribunal to the following passage from a letter from the Australian High Commission in Nigeria, dated 10 April 2013, that was referred to in the case of Anochie and Minister for Immigration and Citizenship [2013] AATA 391 (12 June 2013) at [51]:
“… For your background, the UK currently deport [sic] Nigerian drug offenders to Nigeria, but as a result of decree 33, they refused to inform the Nigerian authorities about the exact nature of the offence. They refer to drug offenders as ‘immigration offenders’. This may become a more complicated issue for the UK in the near future as they negotiate a Prisoner Transfer Agreement.”[129]
[129] Exhibit A1, Applicant’s SFIC, page 9.
I have read the letter in its entirety as it appears in the cited decision, and it is not clear whether the United Kingdom Home Office considered that the Nigerian authorities were applying Decree 33 or whether they were referring to drug offenders as immigration offenders merely because the law existed. Nor do I have information before me about the current practice in the United Kingdom.
The Applicant also referred the Tribunal to a passage from an archived document on the United States Immigration website that refers to a Human Rights Watch source from 1999.[130] That passage states:
[130] Exhibit A1, Applicant’s SFIC, page 8.
“… That people convicted of drug related offenses (sic) are detained at the detention centre (Hajj Camp) which is very close to the Murtala Mohammed International Airport . From these centres, detainees will be arraigned for trial on the grounds of bringing the name of Nigeria into disrepute (CLO 3 Mar 1999). A representative from HRW (Human Rights Watch) states that it is common of deportees with drug convictions to be detained indefinitely by the National Drug Enforcement Agency (NDLEA) on return to Nigeria, unless the detainee has the means to buy himself out (Manby 2 Mar 1999).”
[Emphasis in the original]
This report is more than 20 years old. It is not inconsistent with the DFAT report in the sense that it does not (because it cannot) assert that Decree 33 has been applied since 2005.
The Applicant was asked how he came to know about Decree 33. He said he heard about it in prison and his lawyer explained it to him.[131] He was asked if he had asked anyone in Nigeria about it. He said yes, and it is the law.[132] He said:
[131] Transcript, page 45, lines 33 to 38.
[132] Transcript, page 46, lines 1 to 3.
“I know once it’s the law it can be applied because they pick and choose. That’s the Nigerian law, they pick and choose who they want to - or who doesn’t give them what they want or which tribe - the reason can be lots. They pick and choose what they want to do. Well, so long as it’s the law it can be happening.[133]
[133] Ibid, lines 1 to 8.
However, he conceded that he has not asked if that law has been applied to anybody.[134] When asked why not he said:
[134] Ibid, lines 10 to 11.
“I just - I don’t know who would go to the office in Lagos to ask because when I came here it was in the middle of pandemic. Everyone is, you know, is self-isolating and people are home, so I haven’t asked.”
When the Tribunal said:
“I mean, I’m surprised by that, because if it was me I’d be wanting as much information as I could get because that’s a pretty serious thing to be put in a Nigerian jail.”[135]
[135] Transcript, page 46, lines 18 to 20.
The Applicant responded as though he had in fact asked someone if the law had been applied but they had told him they were unable to find out. He said:
“Yes, I know. In jail I didn’t have a lot - I can’t call because it takes a lot of money to call home. And this thing that I filed I wouldn’t be able to make some inquiries, only here that I have time that I can make inquiries so when I ask someone he says you can’t get to the place because you have to go to the place, you know, it actually was going on, which is why they call it NCDC or some more fees that you can actually apply, because nothing is on the line, they do not have records. You have to go to the office to make sure that you get the right information…”[136]
[136] Ibid, lines 20 to 27.
[Underlining added]
Given the Applicant’s conflicting evidence, I am unable to determine whether or not he made enquiries about Decree 33. However, it is clear that the Applicant is not aware of Decree 33 having been applied.
I find the information about Decree 33 in the DFAT Report to be reliable. It is not undermined by the 1999 report from a Human Rights Watch source. The significance of the position reportedly taken by the United Kingdom Home Office in 2013 is not clear. There is no clear evidence before me that Decree 33 has been applied since 2005. I prefer the DFAT Report and I am satisfied that it constitutes strong evidence that Decree 33 has not been applied since 2005. Accordingly, I am not satisfied that there is more than a remote risk that the Applicant would be prosecuted or imprisoned under Decree 33. Nor am I satisfied that there is any more than a remote risk that the Applicant would otherwise face adverse attention upon his return to Nigeria.
The Applicant’s wife said that in Nigeria there is poverty, it is difficult to get a job unless a person speaks “their multiple languages” and she implied that there was a lot of violent crime. The Applicant, in his request for revocation of the decision to cancel his visa said he would suffer “hardship” if he was returned to Nigeria without elaborating on the kind(s) of hardship from which he would suffer.
However, in the hearing the Applicant did not claim to fear harm apart from in relation to Decree 33. The Applicant did not claim to have suffered hardship or to have been a victim of violent crime when he lived in Nigeria. He completed year 12 in Nigeria and he has worked there.[137] His mother, siblings and relatives live in Nigeria, and he did not claim to be estranged from any family members or suggest that he could not call upon them for support in the event that he is returned to Nigeria. When asked if he maintained contact with his family in Nigeria he said he did not when he was in prison because phone calls were expensive but since moving to Immigration Detention he has “started making a few calls”.[138] I am not satisfied that the Applicant would be without both employment and family support in Nigeria such that there is a real risk that he would suffer hardship. Nor am I satisfied that there is more than a remote possibility that the Applicant will otherwise suffer harm or hardship if he were returned to Nigeria.
[137] Exhibit R2, Respondent’s Supplementary Documents, S3, page 4; S22, pages 71 to 75.
[138] Transcript page 17, lines 5-25.
Following on from, and in addition to, my findings concerning the Applicant’s claims about Decree 33 and hardship, I am not satisfied on the evidence before me that there is a real chance that the Applicant would suffer harm owing to any refugee Convention related ground, or that there is a real risk that the Applicant will suffer significant harm within the meaning of s 36(2A) of the Act. I am not satisfied that Australia would be in breach of its international non-refoulement obligations if the Applicant were to be returned to Nigeria.
It is open for the Applicant to apply for a Protection visa if he is unsuccessful with his application before the Tribunal.
Therefore, this other consideration is neutral. I will continue to address the matters that the Direction requires me to address on the basis that non-revocation of the decision under review will result in the Applicant’s deportation to Nigeria.
(b) Strength, nature and duration of ties
The Applicant was 30 years old when he moved to Australia and he committed his most serious offence three years later.
The Applicant spent around three years running a business and raising his daughter. These matters add a modest measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
The Applicant has been with his wife for around 13 years, and they appear to have a loving and devoted relationship. He has a 12 year old daughter and their relationship also appears to be loving and devoted. For the last nine years his only contact with his wife and daughter has been in the form of visits and long distance communication. The Applicant appears to have a positive relationship with his mother-in-law who has visited him in prison.[139]
[139] Exhibit R2, Respondent’s Supplementary Documents, page 91.
If the Applicant is removed to Nigeria his wife and child will not relocate with him, so he will be separated from them indefinitely. His removal to Nigeria is likely to have a negative impact on his wife emotionally and financially. I have determined that his removal to Nigeria would be against his daughter’s best interests. The Applicant’s wife and daughter will be able to use electronic forms of communication to maintain contact with him if he is removed to Nigeria,[140] however, that is not the same as having a day-to-day physical presence in their lives. Without that presence, the Applicant’s ability to support his wife, participate in his daughter’s life and contribute to the family financially will be very limited. The negative impacts on the Applicant’s wife can be somewhat offset by the fact that she has the support of her mother, a good friend who is supportive,[141] friends at her church and her workplace,[142] and her brother and his family.[143] Likewise, the Applicant’s daughter has relatives and friends in Australia.
[140] Exhibit R3, BBC Article: How internet access is improving in Nigeria.
[141] Transcript, page 44, lines 1 to 5
[142] Exhibit G1, s 501 G-Documents, G8, paragraph 17.
[143] Exhibit G1, s 501 G-Documents, G8, paragraph 10, Transcript, page 44, lines 1 to 14; page 53, line 37.

The Applicant only spent three years in the wider Australian community prior to his incarceration. There is scant evidence of any social ties. He does not claim any and the list of people who have visited him in prison includes only one person who does not appear to be related to him.[144]
[144] Exhibit R2, Respondent’s Supplementary Documents, page 91.
Due to the Applicant’s strong and positive relationship with his wife and daughter, and the effect of non-revocation on his wife and daughter, particularly given his wife’s medical and mental health conditions, I allocate this Other Consideration significant weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The matters that I have canvassed in relation to non-refoulement obligations are equally relevant to this Other Consideration and, as I have addressed them already, I need not repeat myself here. There are some other matters that are relevant to this Other Consideration that require examination.
The Applicant lived in Nigeria until he was 30 and, therefore, is familiar with the language(s) and culture there. I am not satisfied that he would suffer any language or cultural impediments.
He did not report any medical or psychological problems, although he said he might need some form of counselling or rehabilitation to make sure he does not fall back into gambling and cannabis use. There are significant gaps in the mental health services in Nigeria.[145] It follows it will likely be difficult or impossible for the Applicant to access that kind of help if he needs it, and without that protective factor, his risk of resuming cannabis use or gambling is increased.
[145] Exhibit R2, Respondent’s Supplementary Documents, S42, page 136.
The Applicant might experience some initial difficulty with respect to obtaining employment and supporting himself financially. However, I am not satisfied that he would be without the support of his family or that, given his education and resourcefulness, any difficulty finding employment would be more than short term.
The Applicant will be able to communicate with his wife and daughter from Nigeria, however, I am satisfied that he will still suffer a degree of emotional hardship from being separated from them.
Overall, the Applicant may have some difficulty adjusting to life in Nigeria, however, I am not satisfied that it would be to an extent that would preclude successful re-settlement.
Accordingly, I am of the view that this Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)strength nature and duration of ties: significant weight in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: slight weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction, therefore, favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.................................[SGD].......................................
Associate
Dated: 25 May 2020

Date of hearing: 11 May 2020

Solicitors for the Applicant: Mr William Levingston
Christopher Levingston & Associates

Solicitors for the Respondent:

Ms Subasha Prasad
Minter Ellison

“Attachment A – Exhibit List”

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (Page 1–145)

R

-

24 Mar 2020

R1

Respondent’s Statement of Facts, Issues and Contentions (Page 1–16)

R

28 Apr 2020

28 Apr 2020

R2

Respondent’s Supplementary Documents (Page 1–174)

R

-

30 Apr 2020

R3

BBC Article: How internet access is improving in Nigeria, by Mary-Ann Russon

R

20 Feb 2020

11 May 2020

A1

Applicant’s Statement of Facts, Issues and Contentions (Page 1-11)

A

14 Apr 2020

15 Apr 2020

A2

Witness Statement of Applicant’s wife (3 pages)

A

Undated

15 Apr 2020

A3

Applicant’s Bundle of Medical Evidence

(Note: 3^rd email not included as it was a duplicate of 1^st email)

A

-

17 Apr 2020

A4

Applicant’s Statement (2 pages)

A

Undated

28 Apr 2020

A5

Applicant’s Statement in Reply (Page 1-9)

A

6 May 2020

6 May 2020

A6

Compendium of Offender Behaviour Change Programs in New South Wales (Page 1-96)

A

June 2016

6 May 2020

[2020] AATA 1467

25 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction

Date of hearing:	11 May 2020
Solicitors for the Applicant:	Mr William Levingston Christopher Levingston & Associates
Solicitors for the Respondent:	Ms Subasha Prasad Minter Ellison

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (Page 1–145)	R	-	24 Mar 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (Page 1–16)	R	28 Apr 2020	28 Apr 2020
R2	Respondent’s Supplementary Documents (Page 1–174)	R	-	30 Apr 2020
R3	BBC Article: How internet access is improving in Nigeria, by Mary-Ann Russon	R	20 Feb 2020	11 May 2020
A1	Applicant’s Statement of Facts, Issues and Contentions (Page 1-11)	A	14 Apr 2020	15 Apr 2020
A2	Witness Statement of Applicant’s wife (3 pages)	A	Undated	15 Apr 2020
A3	Applicant’s Bundle of Medical Evidence (Note: 3^rd email not included as it was a duplicate of 1^st email)	A	-	17 Apr 2020
A4	Applicant’s Statement (2 pages)	A	Undated	28 Apr 2020
A5	Applicant’s Statement in Reply (Page 1-9)	A	6 May 2020	6 May 2020
A6	Compendium of Offender Behaviour Change Programs in New South Wales (Page 1-96)	A	June 2016	6 May 2020