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

[2024] AATA 1288

BTLD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1288 (23 May 2024)

Division:GENERAL DIVISION

File Number(s):      2024/1403

Re:BTLD

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:23 May 2024

Place:Sydney

The decision under review is set aside and in substitution the mandatory cancellation of the applicant’s visa is revoked.

........................[SGD]................................................

Senior Member A Poljak

Catchwords

MIGRATION – mandatory cancellation of Bridging A (Class WA) (Subclass 010) visa under section 501(3A) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is set aside and substituted

Legislation

Migration Act 1958 (Cth)

Cases

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

Secondary Materials

Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member A Poljak

23 May 2024

1. The applicant is a citizen of Nigeria. He first arrived in Australia on 2 November 2015 as the holder of a Student (Class TU) (Subclass 572) visa. The applicant subsequently departed Australia on 28 January 2017 and returned to the country on 7 March 2017. On 29 May 2021, the applicant was granted a Bridging A (Class WA) (Subclass 010) visa (visa).

2. On 8 November 2021, the applicant was convicted by the Downing Centre District Court of deal with property proceeds of crime <$100000-T2 and recklessly deal with proceeds of crime >$5000-T1. For that offending, he was sentenced to an aggregate term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 4 months.

3. On 26 November 2021, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation) on the basis that the applicant did not pass the character test.

4. On 19 December 2021, 14 November 2022 and 9 February 2024, the applicant made representations to the delegate seeking revocation of the cancellation decision. On 28 February 2024, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke the decision to cancel the applicant's visa. This is the decision under review in these proceedings (decision under review).

   Issues

5. The applicant does not pass the character test by virtue of his sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the sole issue is for determination is whether there is another reason why the visa cancellation should be revoked, under subsection 501CA(4)(b)(ii) of the Act.

   Relevant Legislative Provisions

6. Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and is serving a full-time custodial sentence of imprisonment.

7. Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Subsection 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

8. Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.

9. A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).

10. In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

11. The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-maker’s exercise of discretion:

    (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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12. Paragraph 6 guides decision-makers as to the making of the visa cancellation, refusal or revocation decision. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

13. Paragraph 7 of Direction 99 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should generally be given greater weight than the other considerations: paragraph 7(2).

14. Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-8(5)):

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the strength, nature and duration of ties to Australia;

    (d)the best interests of minor children in Australia; and

    (e)expectations of the Australian community.

15. Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    Protection of the Australian community from criminal or other serious conduct

16. The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:

    When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

17. Paragraph 8.1(2) of Direction 99 provides that decision-makers should also give consideration to:

    a) the nature and seriousness of the non-citizen’s conduct to date; and

    b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the applicant's conduct

18. The applicant's offending conduct is viewed very seriously. The circumstances of the offences committed by the applicant are detailed in the agreed fact sheets and in the sentencing remarks of Judge Sweeney of the District Court on 8 November 2021. Relevant aspects are summarised below.

19. The applicant was “one of the middle men” in a criminal group which was comprised of the applicant and three co-offenders. That criminal group launched a “business email compromise” scheme which targeted Australian businesses. The background and context of the offending conduct of the applicant is that email accounts of some businesses were compromised, and details obtained of payments made to those businesses. Emails were then sent to businesses instructing them to make payments due to other businesses for goods and services not to the business account but to a bank account in a person’s name which had been fraudulently established. When the businesses unquestionably remitted the funds to personal bank accounts, the funds were transferred from those accounts.  

20. The proceeds of crime offending occurred between 1 July 2017 and 22 August 2018, during which time the applicant facilitated the transfer of some $270,000 from fraudulently established accounts into accounts owned by himself and others, in Australia and overseas. Of that money, $90,000 was transferred into Nigerian accounts in the applicant’s own name. Along with facilitating transfers between accounts, the applicant also arranged for the withdrawal and depositing of cash between accounts and facilitated the establishment of the fraudulent accounts themselves. He did not know that any of these acts were being done for the purposes of fraud but was reckless in this regard.

21. On Sentencing, Judge Sweeney noted that at the time of receiving and transferring funds in count 2, he realised that the funds may possibly be the proceeds of crime yet went ahead and delt with them as he did. Judge Sweeney considered that the overall enterprise involved sophistication and planning, although some of that was done by other people. The offences were assessed as moderately serious.

22. The seriousness of the applicant’s conduct is reinforced by the sentences imposed. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. I note that on sentencing, the applicant sought to have his sentence served by way of an intensive corrections order. Judge Sweeney considered the applicant’s circumstances and parity with the co-offenders and stated that the sentence considered appropriate for him and his offending will not permit consideration of that option.  

23. The applicant’s offending has no doubt resulted in a cumulative financial burden to the victims of his crimes. The nature and seriousness of the applicant's offending conduct weighs heavily against revocation of the cancellation decision.

    Risk of Reoffending

24. If the applicant were to reoffend, the harm inflicted on the Australian community would likely include significant financial and psychological harm to individuals and business. However, the applicant has demonstrated significant insight and remorse for his offending conduct and has taken steps towards rehabilitation to mitigate the risk of reoffending. For the following reasons I consider the applicant to be a low risk of reoffending.

25. The applicant spent three years on bail before his incarceration. During this time, the applicant did not commit any further offences and instead focused on leading a positive life. He established a substantial pro social network in the Australian community and served as a volunteer youth coordinator at his local church, Agape Church. The applicant has removed himself from negative relationships and has an entirely new set of friends, Further, he has sought required psychological treatment to commence upon his release (although waitlisted) and said that he will engage in financial counselling, which is a requirement of his supervised parole.  

26. Should the applicant’s visa be reinstated, he has a secure offer of full-time paid employment with Nakango Vision Inc. In a letter dated 26 April 2024, Rev Navavu Ozegbe, Chairman of Nakango Vision Inc., said:

    [The applicant] has previously participated in our volunteer program, demonstrating his dedication and passion for community service. With our organization experiencing growth and securing government funding, we are eager to offer [the applicant] a formal position to further enhance our capabilities in youth development advocacy, support for women, older people, and welfare assistance.

27. In oral evidence, Rev Ozegbe explained how she first met the applicant in 2019 when he attended Agape Church. She said that the applicant completed a leadership course and was given responsibility in the Church. The applicant cleaned the Church; prepared the Church before services on Sunday; cleaned the Church after mass; and was the youth coordinator. During COVID, the applicant supported the Church and its community by delivering food to families in need. Rev Ozegbe described the applicant’s frankness about his offending conduct and his expressions of remorse and guilt. Despite his previous offending, Rev Ozegbe said she entrusted him with responsibilities.

28. A Sentencing Assessment Report dated 19 August 2021, assessed the applicant as having a low risk of reoffending and being a suitable person to undertake community service work. However, due to significant COVID-19 lockdown restrictions, no work opportunities were available for the applicant.

29. In a Pre-release Report dated 6 November 2023, the applicant’s program and service participation in custody is documented. It is noted that due to his low-risk rating, he is ineligible for custodial based programs to address his criminogenic factors. His institutional case plan is focused on [the applicant’s] interventions to address his problem-solving skills and focus on strategies for self-improvement with his case management officer. It records that the applicant successfully completed the Positive Lifestyles Program, Level 1 Digital Literacy, Food Safety, and Vocational Training Program in Business. It is noted that the applicant’s immigration status prevented his progression and opportunity to access pre-release leave opportunities. The applicant was assessed at a T2 low risk of reoffending.

30. There are numerous case reports from the NSW Department of Corrective Services detailing the applicant’s engagement with psychologists. No issues or concerns were raised or noted. The case notes also record positive interaction and engagement with corrective services officers. His willingness to engage with educational courses is noted. The applicant also attended the chapel and engaged in studies in the Preliminary Theological Certificate through Moore Theological College.

31. Through no fault of his own, the applicant has not completed any offence specific programs while in custody. There are no programs specifically targeted to address acquisitional offending, such as fraud. The applicant however did complete courses such as Enough is Enough and the Positive Lifestyles Program. The applicant said he found the courses helpful in that they focused on self-awareness, understanding actions, navigating life, future direction, and anger management. He said the courses, although not specific to his type of offending conduct, helped him to gain insight into his offending and himself.  

32. Dr Youssef, principal forensic psychologist, provided a report in these proceedings dated 2 May 2024. She also attended the hearing to provide oral evidence. In her report, Dr Youssef detailed limitations of her assessment of the applicant. She noted the lack of standardised and widely accepted risk assessment tools specifically designed to evaluate the likelihood of individuals engaging in fraudulent or financially motivated offending behaviour. While there may be psychological risk factors associated with these types of offences, such as stressor and cognitive biases, there is no universally recognised framework or instrument for systematically assessing these risks.

33. Despite the limitations, Dr Youssef selected the Inventory of Offender Risk, Needs, and Strengths (IORNS) risk assessment tool when assessing the applicant. She noted, amongst other things, that the applicant scored in the ‘Very High’ range on ‘impulsivity’ and ‘esteem problems’. In summary, Dr Youssef said:

    [The applicant’s] results indicate problems with impulse control, such as acting without thinking, engaging in impulsive decision making and having low impulse control; feelings of anger, aggression, loneliness and/or boredom; difficulty with intra/interpersonal relationships including, lowered self-esteem and feelings of inadequacy, self-doubt, being unsure of himself, feeling unpopular with others and lacking in confidence; and feeling distant from others and feeling a lack of interpersonal support.

    With respect to personal resources, [the applicant] endorsed the ability to regulate his feelings, cognitions and behaviour, felt that he had learned from previous mistakes, felt able to handle strong emotions and felt that his behaviours do not cause as much trouble as they had previously...

34. Dr Youssef detailed in her report the ‘Fraud Triangle’; a psychological framework used to explain the factors that contribute to financial offending behaviour in individuals (Cressey, 1953). The theory posits that an individual typically exhibits three key factors: opportunity, pressure, and rationalisation. She opined that all of three factors appeared to be present for the applicant at the time of his offending and said:

    In the absence of one or more of the aforementioned elements, financial offending is regarded as very unlikely. In the absence of intervention to address the underlying factors that contributed to [the applicant’s] behaviour, should these three conditions arise again, then this would be considered a high-risk situation for [the applicant].

1. Dr Youssef found that the applicant met the diagnostic criteria for Complex Post Traumatic Stress Disorder (CPTSD). CPTSD results from repeated trauma over months or years, rather than a single event. Dr Youssef further explained:

   Some people with CPTSD may engage in reckless or self-destructive behaviour, that can result in offending behaviour. CPTSD is often characterised by a heightened sensitivity to potential threats including both those related to the trauma and those unrelated to it. Individuals with CPTSD may also be highly reactive to unexpected stimuli or situations, consequently displaying a heightened startle response or an adverse reaction. Symptoms can intensify in response to reminders of the original trauma (i.e., abandonment, violence), ongoing life stressors or newly experienced traumatic events.

2. Dr Youssef recommended that the applicant seek psychological intervention to address the factors as identified above that gave rise to his vulnerability to engaging in the offending behaviour. Furthermore, Dr Youssef recommended that the applicant’s unresolved trauma requires specialised intervention. Ideally, the applicant should be referred to a forensic psychologist who is trauma-informed and can address the factors resulting in his offending behaviour in addition to his trauma.

3. Dr Youssef said treatment would initially start on a fortnightly basis and then decrease over time.  She said that the treatment would target the applicant’s vulnerabilities, namely his impulsivity and esteem issues. Dr Youssef opined that without addressing these factors with therapeutic intervention, the applicant would pose a high risk. As for the applicant’s pro-social network in Australia, Dr Youssef agreed that a good support network is part of intervention but said that a more targeted intervention was required to address underlying factors. Dr Youssef confirmed at hearing that she would be an appropriate person to provide the applicant with her recommended treatment. She also confirmed that the applicant had sought to see her for treatment, had undergone the intake process and was on the waitlist for available sessions.

4. The community support and other typical stabilising factors, including family (wife and child), employment, and community ties are notably strong in this case. This support is contained in numerous character references provided, including the evidence of Rev Ozegbe already detailed in this decision. Some further examples are detailed below.

5. The applicant’s wife provided a written statement in these proceedings and also appeared at hearing to give evidence orally. I do note that the applicant’s wife participated in the same criminal enterprise and was sentenced to a 24-month community correction order for deal with property proceeds of crime <$100000-T2. She stated that she was also taking steps for rehabilitation and provided a report from her psychologist, Nick Cherrie dated 15 April 2024, which detailed her difficulties with anxiety and depression, and treatment. She reiterated that the applicant understood the impact of his offending conduct.  

6. Walter Pospelyj, Anglican Chaplain at Geoffrey Pearce Correctional Centre, provided a letter dated 24 April 2024, and appeared at hearing to give oral evidence. He spoke highly of the applicant’s behaviour while in the correctional centre and spoke of his faith, and genuine and caring nature. Mr Pospelyj has remained in contact with the applicant after his release and during his time in immigration detention. He said that he would gladly offer the applicant the support and assistance he requires. 

7. Ms Malkia Malula, court/police advocate, provided a letter dated 8 February 2024. She explained that she met the applicant in 2019 at the Agape Church and through Nakango Vision. She stated that she considered herself part of the applicant’s support network, which he reciprocates. Ms Malula said the applicant’s passion for youth work led them to collaborate in providing full mentorship for young individuals. She said the applicant displayed determined focus on the positive aspects of life, demonstrating a commitment to helping others.

8. Chibalonza Malula, NDIS manager at Foresight Organisation, provided a letter dated 4 April 2024. Having met the applicant in 2019 when he joined the Church, Chibalonza Malula said the applicant grew to become an instrumental member of the church, he was involved in different activities, and particularly the youth ministry…He led an exemplary life during his 3 years bail period, contributing positively to the youth in church, and others in the community.

9. Oladapo Temitayo Akinwotu provided a letter dated 6 February 2024 and appeared at hearing to give evidence. He described their friendship spanned five years since 2018. He described the applicant’s unwavering commitment to his family and said he ‘draws inspiration from [the applicant’s] behaviour and character’ which inspired his own parenting journey. Mr Akinwotu described the applicant as optimistic about his future as he works to learn and grow.

10. As a whole, this primary consideration weighs moderately against revocation.

    Family Violence

11. This consideration is neutral in considering whether to revoke the cancellation of the applicant’s visa.

    Strength, nature and duration of ties to Australia

12. Paragraph 8.3 of Direction 99 requires decision-makers to have regard to the strength, nature and duration of a person's ties to Australia. Paragraph 8.3 first directs attention to the impact of the Tribunal's decision on the applicant's family members:

    (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    …

    4) the length of time the non-citizen has resided in the Australian community, noting that:

    i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

13. The applicant arrived in Australia on 2 November 2015, and has predominantly been in Australia since that time. During this time in Australia, the applicant has completed a Master of Public Health through Torrens University and completed the following: a Diploma in Community Services, a Certificate III in Business and a Certificate II in Hospitality. The applicant expressed public health as being his passion and his goal of completing a PhD. As already detailed in these reasons, the applicant has positively contributed to the Australian community though his volunteer work at the Agape Church and with Nakango Vision, which has also resulted in broader ties with members of the Australian community. However, less weight should be given to the time the applicant has spent in Australia, being eight years, given he did not spend his formative years here, and where his offending began relatively soon after his arrival in Australia.

14. The applicant’s immediate family, comprising of his wife and daughter, reside in Australia and currently hold Bridging (Class WA) (Subclass 030) visas. The Bridging visas have been granted on an “indefinite” basis. The applicant’s wife and daughter are seeking to remain permanently in Australia and visa applications have been lodged, namely a Protection visa on 13 February 2023, and for a Skilled Work Regional visa on 14 June 2023.  These applications are still pending, and it is entirely unclear whether they will be granted a visa that would enable them to continue to reside in Australia long term. In any event, the period of time that the applicant’s wife and daughter can remain in an Australia remains indefinite, until decisions are reached on their visa applications.  As such, I do consider the applicant’s wife and child a connection to Australia and require some consideration.

15. It is plain from the evidence that the applicant’s wife and child will be profoundly affected should the applicant be removed from Australia. The applicant’s wife has provided evidence about her mental health and stressors associated with being solely financially responsible for raising her daughter. They have no other family support in Australia. The applicant’s wife and child have regular frequent contact with the applicant, either via telephone or in person. It is also plain that this is a family with a very close bond which longs to be reunited. Given the fact that protection has been sought by the applicant’s wife and child, I accept the evidence that should the applicant be returned to Nigeria, his wife and child will not follow. They instead intend to remain in Australia. It is unclear what level of contact the applicant would be able to have with his wife and child should he be removed to Nigeria.

16. This primary consideration weighs moderately in favour of the revocation of the cancellation decision.

    The best interests of minor children in Australia affected by the decision

17. Paragraph 8.4 of Direction 99 requires decision-makers to make a determination as to whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child affected by the decision.

18. There is one child relevant to this primary consideration, being the applicant’s 6-year-old daughter. The Minister accepts that a revocation decision would be in the child’s best interests, however, questions the weight to be afforded to this consideration.

19. The applicant has a very close bond with his daughter. He has been present since birth, with his only significant absence being since his incarceration in 2021. While there has been a long period of physical absence from the child’s daily life, they have maintained frequent contact by telephone, video and in person. The applicant’s wife said that her daughter looks forward to “seeing daddy” on Saturdays.

20. Prior to his incarceration, the applicant was engaged in his daughter’s daily care and shared parental responsibility with his wife. The applicant and his wife have explained how the applicant took his daughter to basketball and soccer, bike riding, to the park, and out socially. 

21. The applicant’s wife has been fulfilling the parental role since the applicant’s incarceration in 2021, however she is struggling. In a statement dated 29 April 2024, the applicant’s wife sets out her financial difficulties in supporting their daughter with living expenses, education and development needs. She said these expenses have beenoverwhelming for one parent to manage, and I have been struggling to keep up with them.  If the applicant’s visa is reinstated and he is released, the applicant has secure employment and could contribute financially as well as assist with looking after his daughter.

22. In her statement, the applicant’s wife also relevantly stated:

    [The applicant’s daughter] is impacted emotionally, socially, and financially by her father's absence. She misses him dearly and expresses confusion and sadness about his prolonged absence.

    [The applicant’s daughter] is currently on holiday and not benefiting from it as other children would. I could not take time off work during this period as I need to earn to keep up with the costs I explained above.

    Had my husband been around, we usually plan around [the applicant’s daughter] to ensure she benefits from the holiday. For example, I could go to my day job, and my husband could take [her] out to do something fun. Then, when I return from work, my husband could focus on his work or help engage [his daughter] in activities.

    Now, it has been tough, as I finish work around 5 pm, then pick up [the applicant’s daughter] from after school care and help her with homework. I am often exhausted, and the lack of assistance worries me about its potential impact on [her] academic performance. Unfortunately, my current income does not allow for Kumon classes or extracurricular activities that [she] would benefit from, like English and math classes, and soccer activities.

    Currently, [the applicant’s daughter] does not understand what is happening. She constantly asks about her father and expresses her desire to be with him. [The applicant’s daughter] asks a lot of question for a child. He tells herself that Daddy is at work, but she can’t understand why he never comes home. She once asked if it was because daddy doesn’t love her. According to her ‘everyone’s daddy comes home except hers’. She always reminds me that we need to go and visit daddy at work. When we visit my husband at the jail, [The applicant’s daughter] will cry and express her wish for him to come home with us. If my husband tells her that he can't come, she then says that she wants to be there with him.

    Before my husband was incarcerated, he would take [his daughter] to the water park, beach, and other outdoor activities, and [she] remembers these times fondly. Currently, we visit my husband often at the detention centre, as we did when he was in jail. We miss him dearly.

    [The applicant’s daughter] can’t wait for my husband to be out so they can enjoy outdoor activities and do homework together.

    [The applicant’s daughter] eagerly anticipates visiting "dad's work" every weekend, and she becomes concerned if we miss a weekend without visiting him.

23. In a letter dated 15 April 2024, Nick Cherrie, psychologist, reported that he has been treating the applicant’s wife since 10 October 2023. Relevantly, he said:

    [The applicant’s wife] presented exhibiting symptoms of anxiety and depression. The cause of this psychological distress seems to be ongoing legal difficulties, as well as needing to work and support her daughter alone as her husband was detained. The stress of the legal difficulties, the uncertainty of her and her husband’s migration, and needing to work and look after her daughter alone led to considerable psychological distress.

24. The applicant’s wife explained that their daughter does struggle with the separation from her father as she doesn’t understand why dad doesn’t come home and thinks daddy doesn’t love us anymore.

25. I also note that in 2022, the applicant was incarcerated in Nowra, making visitation with his daughter difficult. The applicant’s daughter was struggling with the separation, which is evidenced in a letter from Dr Jayasree Dullur, general practitioner, dated 27 May 2022. Dr Dullur noted that the applicant’s daughter had recently developed symptoms of sleep disturbance, emotional disregulation and frequent periods of crying. She opined that the applicant’s incarceration in Nowra and lack of visitation with his daughter for 6 months was a possible causal factor for the symptoms. She recommended that regular visitation would be beneficial.

26. The applicant applied and was successfully granted a transfer, so that he may have regular weekly visitation with his daughter.

27. For these reasons, this primary consideration weighs significantly in favour of the revocation of the cancellation decision.

    The expectations of the Australian community

28. Paragraph 8.5 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    …

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

29. The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This is particularly so given that the Australian community would not afford the applicant a higher level of tolerance given that he has only resided in Australia since 2015, having moved here as an adult.

30. The applicant’s remorse and his low risk of reoffending somewhat tempers the weight to be afforded to the expectations of the Australian community. As does his positive contributions to the Australian community, particularly since 2018.

31. On balance, this primary consideration weighs moderately against revocation of the mandatory cancellation decision.

    Other Considerations

32. Other considerations are set out in Direction 99, at paragraph 9(1). The considerations relevant in this case are the legal consequences of the decision and the extent of impediments if removed.

    Legal Consequences of the Decision

33. The applicant is not a person who is covered by a protection finding, as defined in section 197C of the Act. As a result, he is liable to removal from Australia as soon as reasonably practicable in the circumstances outlined in section 198 of the Act, and to detention under section 189 in the meantime, should the Tribunal affirm the decision under review.

34. The applicant has expressly claimed that he is owed non-refoulement obligations, in circumstances where:

    The applicant’s departure from Nigeria following threats from criminal groups, including expelled cult members. There exists a genuine danger that the Applicant could face sever harm due to retaliation, as these groups believe he provided information to the authorities. This situation may further exacerbate his mental health challenges.

35. The applicant further contends that he also faces potential prosecution under Nigerian law as a returning financial offender by The Economic and Financial Crimes Commission (EFCC), a law enforcement agency in Nigeria specialising in investigating financial crimes such as advance fee fraud and money laundering, specifically under relevant sections of the Economic and Financial Crimes Commission (Establishment) Act 2004.

36. In this case, the assessment of whether the applicant is a person in respect of whom non-refoulement obligations are owed is deferred on the basis that it is open for him to apply for a protection visa; see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

37. The applicant remains free to apply for a protection visa under the Act. The applicant would not be liable for removal whilst a valid protection visa application was being determined. It is accepted that, in processing that visa application, the applicant will be liable to a period of “additional detention”.

38. As such, the legal consequences of an adverse decision includes the possibility of prolonged detention.

39. This consideration favours revocation.

    Extent of impediments if removed from Australia

40. Direction 99 provides, at paragraph 9.2, that:

    (1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a) the non-citizen’s age and health;

    b) whether there are substantial language or cultural barriers; and

    c) any social, medical and/or economic support available to them in that country.

1. The applicant is a citizen of Nigeria. Having left Nigeria at the age of 29, it is unlikely that he would face significant language barriers in Nigeria. However, he contends that the main impediments should he return are cultural barriers resulting from his [redacted] membership and the separation from his wife and daughter, and the difficulties involved in resettling after the years spent in Australia.

2. Dr Youssef diagnosed the applicant with CPTSD. In her evidence she explained that should the applicant be returned to Nigeria, the place where his trauma occurred, this would flare up the disorder and lead to an increase in symptoms. As already detailed in these reasons, Dr Youssef recommended treatment and intervention for the applicant. It is accepted that Nigeria’s healthcare system faces some challenges. As such, the applicant may not have access to the treatment he requires.

3. While the applicant undertook university education in Nigeria, his employment history is limited at best. He said that he worked for peanuts, while he was studying. As such, this previous work history provides little assurance that the applicant could obtain employment in Nigeria upon his return.

4. The applicant’s mother and sisters live in Nigeria. The applicant explained that they would not be in the position to help him should be return. Additionally, given the financial pressures on the applicant’s wife, she would be unable to assist him financially from Australia.

5. For these reasons, I consider that this factor weighs in favour of revocation.

   Decision

6. The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh moderately in favour of not revoking the visa cancellation decision. However, I am not persuaded that these primary considerations outweigh the applicant’s strength, nature, and duration of ties to Australia; the best interest of minor children; the legal consequences of the decision, and the extent of impediments if removed.

7. The decision under review is set aside and in substitution the mandatory cancellation of the applicant’s visa is revoked.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[SGD]...............................................

Associate

Dated: 23 May 2024

Date(s) of hearing:	15 and 16 May 2024
Solicitor for the Applicant:	Mr C Ukaegbu, Spiritus Law Group
Solicitor for the Respondent:	Ms A Wilford, Sparke Helmore Lawyers