Chukwuma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2653
•19 August 2022
Chukwuma and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2653 (19 August 2022)
Division:GENERAL DIVISION
File Number:2022/4417
Re:Joseph Chukwuma
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member J Rau SC
Date:19 August 2022
Place:Adelaide
The decision under review is set aside and substituted with a decision to revoke the cancellation of the Applicant’s visa.
.................[sgnd]...........................
Senior Member J Rau SCCatchwords
MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Return 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 cancelation under section 501CA (4) should be exercised –possibility of indefinite detention considered- consideration of Ministerial Direction No. 90 - decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked
Legislation
Migration Act 1958 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Plaintiff M1/2021 Minister for Home Affairs [2022] HCA 17
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
19 August 2022
INTRODUCTION
1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 30 May 2022, not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Return visa (“the Visa”). The visa was cancelled on 16 November 2017, under section 501 (3A), on the basis that he did not pass the character test.
2. Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 14 October 2016 and sentence to imprisonment for 9- and one-half years. This offending took place when he was on parole for an earlier drug offence.[1]
[1] Exhibit 4, G4, Attachment A, p 24 and G4, Attachment B, pp 26-31.
3. The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory cancellation of the visa pursuant to s 501CA(4)(b)(ii) of the Act.
4. The hearing was held on 10 and 11 August 2022. The Applicant was represented by Dr Timothy Haines of Emulink Migration and Intercultural Consultancies and the Respondent was represented by Ms Claire Stokes of Australian Government Solicitor.
5. The Applicant gave evidence by Microsoft teams from hotel quarantine due to his exposure to COVID-19.
6. The Applicant generally gave evidence in a direct and forthright manner. With some possible exceptions, to which I will refer in due course, I formed the view that the Applicant was truthful and genuine in his evidence to the Tribunal.
7. The Applicant called two witnesses, his partner Ms Rachel Marsh and Ms Sophie Coote who is a counsellor working for an organisation called STTARS.[2]
[2] Survivors of Torture and for Assistance and Rehabilitation Service.
8. Ms Marsh gave evidence in a direct and succinct manner. I formed a view that she was a reliable witness. Her evidence was particularly helpful in understanding the complexities associated with parenting her son with the Applicant, “Child A”.
9. Ms Coote gave evidence regarding her interactions with the Applicant since his referral to her organisational all 18 February 2022. She has been supporting the Applicant by way of telehealth counselling since 19 April 2022 and has conducted something like 8 to 10 sessions with him since then.[3] Ms Coote holds a Diploma in Psychology from Charles Darwin University which she obtained during two years of part-time study. She is presently completing an undergraduate psychology degree. She conceded that she is not a clinical psychologist and is in no position to make a diagnosis of the Applicant’s condition. Notwithstanding this fact, she repeatedly asserted that the Applicant is suffering from “complex PTSD”. I do not accept Ms Coote as an expert for the purposes of making such a diagnosis. She did not assert that she was. Her evidence was otherwise helpful in relation to interactions with the Applicant since April 2022.
[3] See Report, Exhibit 6.
Background Facts
10. The Applicant was born in Liberia on 12 July 1987. He is 35 years of age. He is a Liberian citizen.
11. The There are various accounts before the Tribunal regarding the Applicant’s early life in Liberia and the circumstances leading to his leaving that country and eventually arriving in Australia. For example, in sentencing remarks delivered by His Honour Judge Barrett in the District Court of South Australia on 25 August 2011, His Honour said:
“You have had a very traumatic background. You were born in and brought up, until he was 15, in Liberia. Your parents were killed in front of you. An uncle help you escape Liberia to Malaysia and then to Australia. You are placed in immigration, in detention, when you are in Australia you were about 17. You are released from detention into the care of a foster family have good to you. When you grew up and left their home he found it difficult to fit into Australian society. It took to drinking and got into debt.”[4]
[4] Exhibit 4, G4 Attachment C, p 33.
12. In sentencing remarks of His Honour Judge Muscat in the District Court of South Australia delivered on 14 October 2016, His Honour said:
“ You were born in Liberia grew up during the civil wars. Your father was killed during the war and your uncle, fearing he would be recruited to the child soldier, placed you on a boat bound for Malaysia, leaving behind your entire family.
From Malaysia your uncle managed to arrange for you to travel to Sydney. Arriving under a false passport you were taken into immigration detention at Villawood before being relocated to the Baxter detention centre just north of Port Augusta”.[5]
[5] Ibid, G4, Attachment B, p 30.
13. Both of these accounts and other accounts contained in the materials before the Tribunal differ from the evidence given by the Applicant during the Tribunal hearing. Whether these differences are material or not is discussed below. The facts as presented to the Tribunal are essentially as follows.
14. The Applicant witnessed the murder of his father, or at very least the immediate aftermath of his murder. He presumed that his mother had also been killed. This was not in fact the case. She is presently living in Nigeria. The Applicant was reunited with her during a visit to that country in 2014. The exact circumstances of this happening, the exact time of this happening, and his stated lack of communication with his mother since that time, remain something of a mystery.
15. The Applicant left Liberia to escape what was then a civil war and spent some 2 to 3 years in a refugee camp in Ghana. He was under the care of his uncle. He gave evidence before the Tribunal of having been bullied, having suffered from stammering, and being sexually assaulted during this period. This evidence was not reflected in the earlier material, including submissions made by lawyers acting on his behalf, in two District Court proceedings.
16. In 2005, when he was 17 years old, his uncle made arrangements for him to travel as a stowaway on a ship bound for Malaysia. This journey took three months.[6] He thought at the time that he would be traveling from there to the US. A Malaysian man, obviously involved in people smuggling, was paid by his uncle to provide the Applicant with a British Passport and an airline ticket to Sydney. This passport belonged to a Robert James Lane. It is a mystery exactly how Mr Lane’s passport came to be obtained, and how it was possible for the Applicant to be permitted to leave Malaysia using it. The Applicant knew that this was not his passport.
[6] Exhibit 5, SG37, p 419.
17. The Applicant arrived in Australian on 12 June 2005. He was nearly 18 years of age at that time.[7] He was taken into immigration detention on arrival.[8] He was initially detained at Villawood, then transferred Baxter in South Australia on 14 June 2005.[9]
[7] Ibid, SG30, p, 41, SG31, pp 402-403, SG32, pp 404-411, SG33, p, 412, SG34, p 413, SG35, p, 414, SG36, p, 415, SG37, pp 416-422, SG38, p 423, SG39, p, 424, SG40, p 425, SG41, pp 426-430, SG42, pp 431-438, SG43, pp 439-441 and SG44, pp 442-445.
[8] Ibid, SG48, p 455.
[9] Ibid, SG34, p 413.
18. On 29 July 2005, the then Minister made a residence determination which permitted the Applicant to live in the community.[10]
[10] Ibid, SG46, p 448.
19. The Applicant was released and was taken into foster care by a family from Sierra Leone.[11]
[11] Exhibit 4, G4, Attachment B, p 30.
20. On 21 June 2005, the Applicant made an application for a protection visa under the name “Joseph Toe”.[12]
[12] Exhibit 5, SG53, pp 460-463.
21. On 1 September 2005, the Applicant was granted a temporary protection visa under the name of Joseph Toe. This means that there was a finding in 2005, that protection obligations were engaged pursuant to s 36 of the Act.[13]
[13] Ibid, SG53, p 461.
22. The Applicant says that “Toe” was his father’s name. He later ceased using that name. In his evidence to the Tribunal, he said that this was done so that his son would not be teased. He adopted his mother’s name,” Chukwuma”. DCS records dated 5 February 2014 record a reference to his having legally changed his name.[14]
[14] Ibid, SG9, p 73.
23. The Applicant began offending shortly after arriving in Australia, commencing in 2007. He has been convicted twice of serious drug offences, the second of which was committed whilst he was on parole. A copy of his record of convictions is annexed hereto and marked “B”.[15] An agreed summary of his periods of detention and parole is annexed hereto and marked “C”.[16]
[15] Exhibit 4, G4, Attachment A, pp 24-25.
[16] Exhibit 2, pp 18-19.
24. In early 2006, the Applicant commenced a relationship with Rachel Marsh.[17] She was 21 years old at the time.
[17] Exhibit 6, Attachment A, Statement of Brenda Marsh dated 20 July 2022.
25. In about 2007, the Applicant moved out to live with his two foster brothers. This is where he says his problems started. He started mixing with the wrong people. He started drinking, gambling and “clubbing”. His lack of financial management skills saw him indebted to the tune of $3-5,000.00. He did work at various unskilled jobs.[18]
[18] Exhibit 5, SG11, p 137.
26. On 31 May 2007, the Applicant was arrested for drug offences. He remained on bail until 12 May 2009.
27. 11 October 2008, the Applicant was granted a subclass 851 resolution of status visa. This did not have the effect of cancelling the 2005 finding under s 36 of the Act.
28. The Applicant breached his bail conditions, by leaving the country and traveling to Africa on 5 February 2009 and again on 19 March 2009.
29. Between 12 May 2009 and 26 February 2010, he was in prison. (9 months)
30. He appealed against the 12 May 2009 decision, and a retrial was held. Between 26 February 2010 and 25 November 2010, he was again on bail. (9 months)
31. Between 25 November 2010 and 24 November 2013, he was imprisoned. (3 years).[19]
[19] Exhibit 4, G4, Attachment C, pp 32-36.
32. On 25 August 2011, he was again convicted at the retrial. He was sentenced to 6 years and 9 months imprisonment, with a 3-year non-parole period.
33. The sentencing remarks of His Honour Judge Barrett delivered on 25 August 2011 relevantly state as follows:
“……
Joseph Toe, you have been found guilty by jury of two charges of attempted possession of a marketable quantity of a border controlled drug.
You were part of a plan to import heroin and cocaine into Australia. Your part in the plan was to receive the drugs at the Adelaide Airport on 31 May 2007. Others arranged to package and send the drug to Australia. I am not sure what you were to do with the drugs once you had taken them into your possession.
There were two different drugs. Secreted in the frame of a painting was 101.3 g of material, of which 60.7 grams was pure heroin sent from India. Secreted in a photograph album were 201.8 grams of material, of which 120.7 grams was pure cocaine sent from Brazil.
The authorities were alerted to the importation and removed the drugs in Sydney. They put nothing back into the painting from which the heroin had been taken but they put icing sugar into the photograph album from which the cocaine had been taken.
You were directed by others to collect the drugs. [However, you arranged for your girlfriend to do the actual collection from the airport. While initially the prosecution alleged that your girlfriend was a knowing participant in the collection of the drugs, charges against her were eventually dropped.] sic
While I accept that you were not a principal instigator of this importation and, of course, you are not charged with importation, I do not accept that you were merely collecting the drugs for a payment of $600. I simply do not know precisely what role you were playing, other than that you were collecting what you thought were drugs. I do know that your role included unpacking the packages, so that it was not just a question of your being a courier of packages.
[After your girlfriend picked them up from the airport you drove with her to your house where you unpacked the parcels.] sic Later in the evening you and your girlfriend disposed of the packaging in an industrial bin at a shopping centre. What you were to do after that I do not know.
You told the author of the pre-sentence report prepared for you that you were unequivocal in taking responsibility for your offending. Yours is a very belated taking of responsibility because you appealed against the jury's verdict but then withdrew the appeal.
You told the same author and your counsel that when you were originally asked to collect the packages you thought the goods were likely to be foodstuffs. I do not accept that.
It is put on your behalf that you were inexperienced and vulnerable. I will return to the question of your vulnerability but there was quite. a degree of sophistication in your collection of the packages. You took care to avoid your being identified by those who might be following you.
It was put on your behalf that you have always been a religious person. The force of that submission is slightly diminished by one of the phone calls you had with one of the people directing you in your actions. He purported to be a holy man. Encoded in his religious talk were directions on how you would go about collecting the parcels. You readily engaged in that sort of conversation.
The value of the drugs depended upon how they were sold. If they were sold in bulk they would return a lower price, but if sold on the street would be worth more.
I am told, and it was the evidence at the trial, that the cocaine would have been worth between 1 and $200,000 and the heroin between 50,000 and $200,000. The amount of drugs recovered by the authorities in Sydney was substantial.
You are not entitled to any discount on sentence by reason of cooperation with the police or pleas of guilty. You have no prior convictions or court appearances. Your youth can be taken into account. You were just short of your 20th birthday at the time of this offending.
You have had a very traumatic background. You were born in and brought up, until you were 15, in Liberia. Your parents were killed in front of you. An uncle helped you escape Liberia to Malaysia and then to Australia. You were placed in immigration, in detention, when you were in Australia when you were about 17. You were released from detention into the care of a foster family who were good to you. When you grew up and left their home you found it difficult to fit into Australian society. You took to drinking and you got into debt.
I can accept to a degree you might have been vulnerable to temptation to take part in this drug offending. You have no prior convictions and I accept that . you were having trouble fitting into the community.
However, your bail history in this matter is somewhat disconcerting. After being arrested on 31 May 2007 you were released on bail. It was a condition of your bail that you not leave the State. Your first trial concluded with guilty verdicts on 12 May 2009. You appealed against those convictions and ultimately you were successful in that appeal.
You were taken into custody upon conviction but before that you had breached your bail twice by leaving the country and flying to Liberia.[20] You left Australia on 5 February 2009 and then again on 19 March 2009. You told the author of the pre-sentence report that you travelled to Africa to join your foster mother who was sick and seeking treatment from a native doctor. You also said that she was helping you to reconnect with your uncle. That does not really explain why you made two trips in such quick succession, and it certainly does not excuse your breaching your bail conditions.
[20] Actually Nigeria.
As I have said, you appealed successfully 1;1gainst the convictions. You were released from custody on 26 February 2010. You breached your bail again after being released. You breached it twice. The first time was on 26 May 2010 when you failed.to report to police. You have already been dealt with for that breach.
The second breach was on 17 November 2010 when you again flew to Liberia.[21] You were arrested on your return to Australia on 25 November 2010. You have been in custody ever since.
[21] Ibid.
…….
The maximum imprisonment penalty for each of the two offences of attempting to possess a marketable quantity of a border controlled drug is imprisonment for 25 years. The maximum imprisonment penalty for each of the three breach of bail offences is two years imprisonment.
I will fix one sentence for the three breach bail offences but take all three of them into account. As I have said, two were committed shortly before your first trial and one was committed after you were released from your successful appeal.
I would have sentenced you to 12 months for the three breach bail offences but I reduce that 12 months to nine months by reason of your guilty pleas. I direct that the nine months imprisonment be backdated, that is to ·run from 25 November 2010. I move to sentence for the drug offences.
Personal and general deterrence are important in fixing a penalty for offences which are related to the importation of border controlled drugs. You have committed two such offences involving two different drugs, although I accept it was essentially one transaction. I impose one prison sentence for both offences but I take both offences into account.
I fix a head sentence of six years imprisonment. I order that that six years be cumulative upon the nine months for the bail offences. That makes a total head sentence of six years and nine months. I reduce the head sentence by nine months, making allowance for the time that you spent in custody after the first trial. That leaves a head sentence of six years. I tum to the non-parole period.
You were young at the time of this offending. You were just short of your 20th birthday. You have no history of offending. You had a very traumatic background and were finding difficulty in making your way in the community. You have shown yourself capable of work, and you have applied yourself to education. I bear these personal matters in mind. I fix a non-parole period of three years.
In my view there is no good reason to suspend the Sentence. The offending is too serious. Your personal circumstances, including your youth and lack of prior history are not sufficient to warrant suspension. You will have to serve the sentence.
……
HIS HONOUR: No. Six years, nine months for bail.
MR WHITE: Yes.
HIS HONOUR: Six years or the drugs; making a total of six years, nine months.
MR WHITE: Thank you.
……
Now, if you will just bear with me. Said as part of my sentencing remarks this: ‘However, you arranged for your girlfriend to do the actual collection from the airport.’ That is an error. I correct that error in this way: ‘However, you arranged for a courier to do the actual collection from the airport and you directed your girlfriend to follow the courier.’ Now that error needs correction elsewhere.
I said ‘After your girlfriend picked them up from the airport you drove with her to your house where you unpacked the parcels.’ That in part is an error. I collected them from him and you drove with your girlfriend to your house where you unpacked the parcels.’
Now, the other error, I’ll just find it. Yes, in my sentencing remarks I said: ‘While initially the prosecution alleged that she was a knowing participant in the collection of the drugs, charges against her were eventually dropped’. That is an error. I correct that: ‘The prosecution charged your girlfriend for being a knowing participant in the collection of the drugs but she was acquitted at the first trial when you were convicted.’ Is that correct?
MR WHITE: Yes.
HIS HONOUR: Thank you for those corrections.
……”[22]
[22] Exhibit 5, SG11, pp 129-134.
34. In this instance, the Applicant was a relatively minor player in a serious drug importation scheme that also involved his “brother”, who by that time, was resident in WA. The Applicant stood to gain $600 for his part in the crime. There is no question that even if he did not know the precise details, he knew that what he was doing was illegal.[23]
[23] Ibid, SG9, p 74.
35. On 24 April 2013, the Applicant was advised that he had been approved for home detention.[24]
[24] Ibid, SG10, p 111.
36. On 17 April 2013, the Applicant was provided with an official written warning regarding the consequences of him reoffending in these terms:
“……
On 14 January 2013 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class CD Subclass 851 Resolution of Status visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
Some Australian government forms (including the Incoming Passenger Card completed when entering Australia) contain questions about criminal convictions and outstanding charges. It is important that you answer these correctly, declaring all criminal convictions and outstanding charges, as failure to do so would breach the law and could have serious consequences, including:
·refusal of entry to Australia;
·refusal of citizenship;
·cancellation of your visa;
·removal from Australia; and
·criminal prosecution.
…….”[25]
[25] Exhibit 4, G4, Attachment R, p 93.
37. A parole report sent on 14 August 2013, mentions the fact that the applicant “may benefit from engaging with a community-based service provider such as survivors of torture and trauma assistance and rehabilitation service (STTARS) to address any grief and loss issues.”[26]
[26] Exhibit 5, SG13, p 160.
38. On 27 August 2013 the Applicant formally changed his name to “Chukwuma”, which was his mother’s name.
39. On 15 October 2013, Child A was born. The Applicant has been incarcerated for all but the early months of Child A’s life.[27] He is now aged 8 years. Child A has been diagnosed with level 2 autism and anxiety. His mother is heavily reliant on her mother, Brenda Marsh to assist with caring for Child A. Brenda Marsh is 69 years of age and has some health issues.[28]
[27] Exhibit 1, p 7, para 23.
[28] Statement of Rachel Marsh, undated.
40. On 13 December 2013, the Applicant signed an acknowledgement of the warning given on 17 April 2017 in these terms:
“I, Joseph CHUKWUMA, acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501 (2) of the Migration Act 1958. I understand that I can again be considered refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”[29]
[29] Exhibit 4, G4, Attachment R, p 95.
41. In April 2014, the Applicant travelled to Nigeria for the purpose of visiting family. Whilst he was there his uncle passed away and he was granted an extension of this visit to attend the funeral.[30] The Applicant was somewhat vague about his connections to Nigeria. I gained the impression that he was trying to play these connections down.
[30] Exhibit 5, SG9, p 57.
42. On 8 April 2014, the Applicant was granted the visa, which was later cancelled under section 501 (3A), on the basis that he did not pass the character test.
43. Correctional Services records dated 17 July 2014, refer to him seeing psychologist, Bernadette Murphy on the following day.[31]
[31] Ibid, SG9, p 68.
44. Correctional Services records dated 7 August 2014 talk about the Applicant’s planned business buying and selling car body parts from wreckers in Australia to purchasers in Africa. It also mentions that “he is engaging in psychological treatment with a psychologist, Bernadette Murphy for childhood traumas.”[32]
[32] Ibid, SG9, p 67.
45. Between 24 November 2013 and 17 February 2015, (15 months) the Applicant was released on parole. He reoffended on parole.
46. Correctional Services records dated 27 November 2014 state:
“Joseph attended and participated in psychological treatment with a psychologist, Bernadette Murphy and address grief/loss issues/AOD relapse prevention strategies/positive behaviours. It was reported that Joseph engaged well during sessions of which are now complete.
Referral to STTARS should the need arise.”[33]
[33] Ibid, SG9, p 63.
47. Correctional Services records dated 16 January 2015 refer to the Applicant making a report following his return from Nigeria. This states:
“……he reports that his trip was successful, in that he was able to sell all of the car parts he had shipped over. He was also able to check on the ‘import of cosmetics’ business left to him in [his uncle’s] will. Joseph stayed with who raised him as a boy when both were killed in the war. Joseph will assess the potential success of his business with his accountant to determine if it is financially lucrative.[34]
[34] Ibid.
48. This entry does not suggest that the Applicant was suffering any financial difficulty. His evidence to the Tribunal suggests that he had already become indebted to an unnamed Nigerian man to the tune of $25,000.
49. Between 4-17 February 2015, the Applicant was again involved in a serious drug importation scheme. He told the Tribunal that this was to wipe out a loan debt of $25,000 plus $5,000 in interest owed to the Nigerian man.
50. On 17 February 2015, the Applicant was arrested and remanded in custody.
51. Correctional services records dated 3 March 2016 state that the Applicant “undertook psychological treatment – areas addressed were grief, loss and trauma.”[35]
[35] Ibid, SG9, p 57.
52. On 14 October 2016, the Applicant was convicted of a serious drug offence and sentenced 9 and a half years imprisonment, as from that date. The Applicant was again vague in his evidence to the Tribunal, concerning how he came to be indebted to the tune of $30,000 in such a short time, leading up to his offending.
53. In his sentencing remarks, Judge Muscat of the SA District Court said:
“……
Joseph Chukwuma, you have pleaded guilty to attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine. This is an extremely serious crime which is reflected in the maximum penalty of life imprisonment.
Your involvement in this crime is made all the more serious because you did so whilst you were on parole for crimes of attempting to possess marketable quantities of heroin and cocaine on May 2007. Those crimes were committed by you under your former name Joseph Toe. You were initially convicted of those crimes but successfully appealed: see The Queen v Toe (2010) 106 SASR 203. The circumstances of that offending are well detailed in the judgement of the Court of Criminal Appeal. You were again convicted of those crimes at your retrial in 2011. You were imprisoned for six years and an additional nine months for breaching bail on three occasions. The sentencing judge reduced the six year sentence by nine months to take into account the period you spent in prison following your first trial, thus resulting in a sentence of five years and three months imprisonment for Commonwealth drug offences. The trial judge fixed a non-parole period of three years in respect of the sentence he imposed for your drug offences and ordered the sentence and non-parole period for those crimes from 25 November 2010.
On 24 November 2013 you were released on parole in respect of that sentence pursuant to Part 1B of the Crimes Act. Your parole order in relation to the sentence imposed was due to expire on 24 February 2016.
You first became involved in the offending before this court on 4 February 2015 and you continued to me involved until you were arrested on 17 February 2015 and remanded in custody. You were therefore on parole in relation to your previous sentence when you offended in a very similar way. The unexpired balance of your previous sentence, calculated from 17 February 2015, is one year and eight days imprisonment. I view this fact as a serious aggravating feature of your present offending. You took advantage of your liberty to commit an identical and in some ways much more serious offence to those which you committed in 2007. Accordingly, not only must you be adequately punished for your present crime, but the sentence imposed must deter you from engaging in similar offending again as the previous sentence and parole order has obviously not achieved that purpose.
Turning now to the crimes before the court. You attempted to possess 16.83kg of a crystalline substance of which 13.16 kg was pure methylamphetamine; in other words, at a purity level of 78.2%. it is important to note that the commercial quantity of methamphetamine is set at 750 g under the legislation. The drugs that you attempted to possess, if sold at the level of purity in kilograms amounts, were valued at around $4.2 million. If the drugs were cur in terms of purity and sold at usual quantities of ounces, eight balls or points, then the profits to be made from the distribution of those drugs was many, many more millions of dollars.
Having said all that, it is not suggested that you were going to trade in the drugs such as to reap those mind-staggering profits. Someone or others were going to do that. Your role in this crime was simply to facilitate delivery and collection of those drugs under instruction from those directly involved. Nevertheless, your role was an important one in the chain of collection if and ultimate distribution of a very harmful illicit substance.
The methamphetamine was imported in Australia from China on 10 December 2014 by others. The drugs were concealed inside the frames of two treadmills which were addressed to Paul Karim at a false address in Sydney. Paul Karim is also a false identity.
Following the arrival of the treadmills into Australia communications took place between Paul Karim and the freight company in an attempt to arrange collection of the shipment. A person identifying himself as Paul Karim spoke with the freight company and later engage in e-mail correspondence.
In late January 2015 the freight company advised that the shipment was still being stored at their warehouse in Sydney and requested payment of storage fees, which were later paid into their account.
On 2 February 2015 Paul Karim contacted the freight company to inquire as to when the shipment could be collected from the warehouse. He was advised that it could be collected on 4 February 2015, however, no person attended at the warehouse on that date to collect the shipment. It was thereafter that you were contacted by the principals in Nigeria and became involved in arranging for delivery of the shipment from Sydney to Adelaide and for its collection once it was delivered to a nominated address in Adelaide.
…….
He dropped the youth off at the address leaving him there to accept delivery of the shipment when it arrived.
However, before the shipment was delivered that morning, Federal police officer arrested your co-offender. While your co-offender was under arrest, a fact that was unknown to you at the time, you attempted to contact him. You were arrested soon after by Federal police officers.
The prosecution had submitted that your role was to act as an intermediary to facilitate the delivery and collection of drugs on behalf of the principals in Nigeria and their connections in Australia. Plainly, if the drugs were eventually collected from the delivery driver you were to have received further instructions as to what was to happen next.
The prosecution had asserted that your involvement was limited to the drugs that were inside the two treadmills but that there were other illegal shipments of drugs that you were also involved in. on the available evidence, I cannot make that finding beyond reasonable doubt and, as such, I reject the prosecution submission that you were involved in other attempts to possess drugs, other than your role in respect to the drugs found inside the treadmills.
You were originally charged with attempting to import a commercial quantity of a border controlled drug. That matter was listed for trial. However, before the trial commenced, you negotiated a resolution with the prosecution and it substituted that offence with the offence of attempting to possess a commercial quantity of a border controlled drug. Whilst each offence attracts the same maximum penalty, your plea reflected that you attempted to possess the drugs knowing they had been unlawfully imported, as opposed to having attempted to import the drugs yourself. That said, the evidence was principally the same for either offence. Nevertheless, your plea of guilty to the substituted offence does reflect a willingness on your part to facilitate the course of justice.
Following your release on parole you started up a business exporting car parts to Nigeria. Indeed, you were granted permission to depart Australia to travel to Nigeria in late 2014 for the purpose of selling those car parts. You were required to return to Australia by 14 January 2014 and you did so.
……
You were told that by agreeing to assist in the delivery of the drugs there would be a write-down of your debt in the order of several thousands of dollars.
……
I have received a letter from your partner, which details your son’s disability, such that raising him has made it much more difficult if you are imprisoned. As you can see from what your partner has written, what you have now done has caused enormous difficulties for your family. Whilst I will take into account those difficulties, there are limitations to how much that can impact upon the ultimate sentence to be imposed upon you.
You claim that you are committed to your family and that you feel much shame, regret and disappointment in the situation that you have now left them in. you should have though more about them when you were considering reoffending in the same way that landed you in prison previously.
Whilst I have sympathy for your family, the fact remains that your crime is an extremely serious one requiring the imposition of a lengthy prison sentence, commensurate not only with the high maximum penalty but one that must have parity with other comparable sentences for similar crimes imposed by other judges or courts of appeal, otherwise known as the principle of comity in sentencing the Commonwealth offences.
Taking everything into consideration, you will be imprisoned for nine-and-a-half years.
Pursuant to s.19AQ of the Crimes Act the sentence I have imposed upon you has the effect that your parole order is revoked and you are required to serve the unexpired balance of that sentence which is 12 months and eight days.
Pursuant to ss.19 and 19AR of the Crimes Act the sentence I have imposed upon you will be served cumulatively, which I consider is necessary in point of principle, upon the unexpired balance of your revoked parole resulting in a total sentence of 10 years, six months and eight days imprisonment.
……
Pursuant to s.19AR (1) of the Crimes Act I fix a non-parole period of six-and-a half-years.
……”[36]
[36] Exhibit 4, G4, Attachment B, p 26, 27 and 29-31.
54. Correctional Services records dated 27 July 2021 state that the Applicant “approached me this morning regarding wanting documents to sign for deportation back to Nigeria. We spoke in length about his decision to sign these now when he had been fighting to remain here. He stated he has thought long and hard about this and wants to be deported. He does not want to spend any more money fighting this when the money could go to support He said he has a large family back in Nigeria will be there to support him on his return. I asked if you would like to speak with a SW bracket social worker), he declined.”[37]
[37] Exhibit 5, SG9, p 39.
55. On 23 July 2021 the Applicant signed a “Request for Removal from Australia”. He later claimed that this was signed “under psychological duress from an Australian Border Force officer”.
56. On 10 August 2021, a decision was made not to grant the Applicant parole. The reasons given were:
……
The order for refusal of parole has been made for the following reasons:
1. I have taken into account the nature and circumstances of your offending, and the findings of the sentencing court, and that you were on parole for a similar Commonwealth drug offence at the time of your offending. This was an aggravating feature in your offending. The court remarked you had taken advantage of your liberty to commit an identical and in some ways more serious offence and your offending was ‘extremely serious’. The court found ‘your role was an important one in the chain of collection and ultimate distribution of a very harmful illicit substance’. The court noted the amount of drugs imported was found to be 13.16 kilograms of pure methylamphetamine.
2. You have a largely unsatisfactory response to previous periods of supervision and you have displayed a pattern of behaviour in custody that indicates you may have difficulty complying with parole conditions. Your behaviour when previously subject to conditional release demonstrates a level of non-compliance. Your conduct while in prison demonstrates a pattern of disrespect for authority. I am not satisfied that you will comply with parole conditions or engage with Community Corrections to make rehabilitative progress and reintegrate into the community.
3. You lack sufficient post-release plans if you are released into immigration detention or deported to Nigeria. You have not identified any plans on how you can further your rehabilitation and improve your prospects of reintegration and you have not provided information about why you do not pose a risk to the safety of the community. You have not provided adequate information about your plans if you are released into immigration detention or if you are deported. I am concerned that your release at this time therefore poses an unacceptable risk to the community.
Under subsection 19AL(2)(b) of the Crimes Act, I advise that I will reconsider you for release on parole within 12 months of this notice being signed.”[38]
[38] Ibid, SG25, pp 368-369.
57. By letter dated 27 August 2021, solicitors then acting for the Applicant made the following representations to the Commonwealth Parole Office in support of a request by the Applicant to be deported to Nigeria:
“……
Mr Chukwuma is a citizen of Nigeria. He has applied to be deported to Nigeria and has taken active steps to progress this application including speaking with a Border Force Officer.
In the event that Mr Chukwuma were to enter Detention, it is understood that:
1.Mr Chukwuma will be reunited with a number of his former inmates of Mobilong; inmates of whom he has engaged with on a pro-social manner;
2.Mr Chukwuma will continue with his active and pro-social involvement in group exercises and will share his cooking skills with other detainees; and
3.a psychologist will be available to Mr Chukwuma for him to work alongside to further his rehabilitation.
If Mr Chukwuma is deported to Nigeria he will have the support networks of his family. He will reside with his mother at the address of . He will be offered employment in his family business “Silver Well Kingpower Oil & Gas Enterprise” and will continue to work with a psychologist. More information can be provided in this regard if need be.
Mr Chukwuma has used the non-parole period to reflect upon his regrettable actions and the negative effects it has on the community. He does not shy away from taking complete responsibility for his offending.
Mr Chukwuma’s conduct in Mobilong prison is reflective of the lessons that he has learnt whilst in custody. His pro-social behaviour (as described above) demonstrates a pattern of respect for authority and the level of contrition and remorse he displays for his conduct prior to entering prison. For these reasons, it is respectfully submitted that weighing the considerations referred to in s 19ALA of the Crimes Act 1914 (Cth), Mr Chukwuma should be released on parole.”[39]
[39] Ibid, SG26, pp 374-377.
58. The Applicant acknowledged in his evidence before the Tribunal that family, including his mother and an aunt lived in Nigeria. He also accepted that he had inherited a tribal title and property from his deceased uncle in Nigeria.
59. In April 2022 the Applicant commenced tele-health conferencing with STTARS.
60. On 2 August 2022, the applicant signed a document rescinding his request for removal from Australia. This document is worded in the following terms:
“I, Joseph CHUKWUMA, resident in Mobilong Prison at the date hereunder, herewith fully rescind, revoke and withdraw a “Request for Removal from Australia”, signed by me on 23rd July, 2021.
The latter request was signed under psychological duress from an Australian Border Force officer who convinced me, at a time of great mental stress for myself, that voluntary deportation was the only way out of my predicament. This is not true. I have a wife and a child to whom I am devoted, and I wish to spend the remainder of my life contributing to them and to Australia society to make restitution for and to the greatest possible extent redress the wrongs that I have done to that society.”[40]
[40] Exhibit 7, Attachment A.
61. The Applicant was released on parole on 9 August 2022 and taken into Immigration detention. The conditions of his parole are extensive. These are annexed hereto and marked annexure “D”.[41] His parole period ends on 24 August 2025.
[41] Exhibit 9.
62. In summary, in the 16 years since arriving in Australia in February 2006, the Applicant has been on bail, on parole or in prison/ detention for all but 15 months (February 2006- May 2007) During that same period, he has been incarcerated for a total of almost 9-and one half years. See Annexure “C”.
63. The Applicant has a past history of alcohol abuse and gambling, but he appears to have managed to move past this phase in his life, as a young adult.
64. The Applicant has produced no compelling evidence of any medically diagnosed mental illness. Various records available to the Tribunal record him as denying having mental health issues and there certainly is no record of him ever having expressed suicidal ideation, contrary to the submissions put by his representative. The report produced by Ms Sophie Coote dated 23 June 2022, makes references to various literary sources but does not in my opinion, constitute compelling expert evidence of any specific mental health issue. Ms Coote herself conceded she was in no position to make such a diagnosis. There is no other diagnosis in evidence.
65. The Applicant’s representative sought to make a great deal about the significance of his engagement with STTARS since April 2022. He suggested that this was the first time that the Applicant had received appropriate treatment for his serious underlying mental health issues. I reject this submission. Not only is there no diagnosis of any particular mental health issue by anybody qualified to make such a diagnosis, but there is evidence in Correctional Services records of the Applicant having received psychological counselling for trauma and other issues going back as far as July 2014. To the extent that the Applicant’s representative advanced the argument that his recent engagement with Ms Coote has been a first relevant treatment of mental health issues. I reject this submission. In saying this, I do accept that the Applicant has been exposed as a young person, to traumatic experiences and that these have no doubt had an impact upon him. In terms of the Applicant’s physical health, there was no evidence to suggest that he had any problems.
66. The Applicant has significant ties not to Liberia, but to Nigeria. He has close family there, he has apparently inherited a tribal title and property there. According to his then solicitors, as August 2021, he would be able to reside with his mother in Lagos and would be able to have employment in a family business. He would also be able to continue to work with a psychologist. He wanted to be sent there.[42]
[42] Exhibit 5, SG26, p 376.
67. If the Applicant were to be released into the community, he has an offer of work as a plasterer.[43] He has another offer in regional South Australia that he would probably not be willing to take up given that Ms marsh has just renewed her current residential tenancy in Adelaide for 12 months. He would live with Ms Marsh and his son and to contribute to the family. He is on good terms with Ms Marsh and her family.[44] He would continue to engage with STTARS. He has some friends in the community. His foster family are in WA. This is probably a good thing, as his interaction with his “brothers” has been an element in his offending.
LEGISLATIVE FRAMEWORK
[43] Exhibit 7, Statement of Alistan Bieke Baytur dated 21 July 2022.
[44] Ibid, Attachment B, Statement of Brenda Marsh dated 20 July 2022.
Does the Applicant Pass the Character Test?
68. The Applicant was sentenced by The District Court of South Australia to a term of imprisonment of 9- and one-half years.
69. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
70. In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[45]
[45] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
71. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
72. The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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. 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. However, Australia may 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.
(5)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 8.4(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.
73. Paragraph 6 of the Direction provides that:
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.
74. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
75. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
76. It is important to note that these “Other Considerations” are not exhaustive.[46] This case raises an additional “Other Consideration” of the prospect of indefinite detention.
[46] Direction 90, cl 9 (1).
77. 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:[47]
“…Direction 65 [now Direction 90] 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.”[48]
[47] [2018] FCA 594.
[48] Ibid, [23].
offending HISTORY
78. The Applicant’s criminal record as produced by the Australian Federal Police Criminal Records is outlined at Annexure B.
79. The Applicant’s offending commenced in 2007. As already observed above, in the 16 years since arriving in Australia in February 2006, the Applicant has been on bail, on parole or in prison/ detention for all but 15 months (February 2006- May 2007) During that same period, he has been incarcerated for a total of almost 9-and one-half years. He was released on parole on 9 August 2022. He was immediately placed in immigration detention. His current parole period does not end until 24 August 2025.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
80. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or 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.
81. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
82. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
83. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
84. The Applicant has been involved in two serious drug offences. These are very serious crimes. The adverse community impact of drug trafficking is devastating.
85. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
86. There is no relevant evidence before the Tribunal, aside from the obvious observation that the Applicant does not pass the character test in s 501(6) (c).
87. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
88. As previously noted, the Applicant has spent the majority of his time in this country in prison/ detention. His last offence was not only very serious but was committed when on parole for similar offending. The length of his term of imprisonment is an indication of how very serious his offending has been.
89. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
90. The Applicant’s offending has been serious and escalating as set out above.
91. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
92. The cumulative effect of the Applicant’s offending is very serious. Illicit drugs are a mainstay of organised criminal gangs and cause untold damage and misery both to the users and those close to them.
93. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
94. The Applicant gained entry to Australia in the first place, by fraud. He knowingly entered the country on another man’s passport. But for that deception, he would not have entered the country.[49]
[49] Exhibit 5, SG33, p 412, SG34, p 413, SG35, p 414, SG36, p 415, SG37, pp 416-422, SG38, p 423, SG39, p 424, SG40, p 425, SG41, pp 426-430, SG42, pp 431-438, SG43, pp 439-441, SG44, pp 442-445, SG45, pp 446-447, SG46, p 448, SG47, pp 449-452, SG48, pp 453-455, SG49, p 456, SG50, p 457, SG51, p 458, SG52, 459 and SG53, pp 460-463.
95. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
96. As has already been noted the Applicant has reoffended after being warned. He reoffended when on parole. This is extremely serious.
97. The factors set out in paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
98. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
99. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
100. 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.
101. The Applicant has been a very serious offender. He learned nothing despite an explicit warning and a jail term. He then reoffended on parole. His most recent offence is his most serious. The harm to the community should he reoffend is extremely serious.
Likelihood of engaging in further criminal or other serious conduct
102. The Applicant’s record is very serious. His present protestations about the importance to him of supporting his family carry little weight in light of his previous conduct. He continued to escalate his offending even after the birth of his son in 2013 and even after being warned about the consequences of reoffending. The Applicant’s recent interaction with STTARS is positive, but it is not his first engagement with psychological support. I reject the submission of the Applicant’s representative that this recent development is demonstrably transformational. I do accept that the Applicant has a close bond with Ms. Marsh and his son. This is demonstrated by correctional services records of their visits and contact with him over the many years of his incarceration.[50] The Applicant was a relatively minor player in very serious drug offences. His lack of financial management skills has clearly made him vulnerable to involvement in crime, to extinguish his debts. It is likely that if he were to get into debt again, he would be tempted to re-offend. On a positive note, the fact that he is subject to strict parole conditions until 24 August 2025, gives some comfort. This is tempered of course, by the fact that he last offended, when on parole. It is difficult to have an optimistic view about the Applicant’s risk of reoffending. On balance, I assess the Applicant as presenting at least a medium risk of reoffending.
[50] Ibid, SG4, pp 9-24.
Conclusion: Primary Consideration 1
103. Primary consideration number one weighs very heavily against revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
104. Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
105. There is no evidence before the Tribunal regarding this consideration. It is neutral.
Conclusion: Primary Consideration 2
106. This consideration is neutral.
Primary Consideration 3: The best interests of minor children in Australia
107. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(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 refuse or cancel the visa 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
108. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
109. The Applicant says that this consideration is highly relevant to Child A. I agree.
110. As previously noted, Child A was born on 15 October 2013. The Applicant has been incarcerated for all but 15 of the first 16 months of Child A’s life. He has been incarcerated since 17 February 2015. The Applicant has not performed a direct parental role or financially supported Child A since then. The Applicant has had regular ongoing contact with Child A as evidenced by Correctional Services’ prisoner visit records.[51] The Applicant’s relationship with Ms Marsh and Child A remains strong despite his incarceration.
[51] Ibid.
111. Child A was assessed in 2018, (aged 4), by the Gordon McKay Child Development Unit as having a Level 2 Autism Spectrum Disorder.[52] This means that he has very complex needs. He is being home schooled by Ms Marsh. He requires full time care. Ms Marsh has been supported in this by her mother Brenda Marsh. Brenda is now aged 69 years and has some health issues of her own. It is entirely possible that Ms Marsh may need to care for Child A and her mother at some time in the future. The nature of Child A’ s disability is such that he will always require special care and support, even as an adult.
[52] Exhibit 6, Attachment G, pp 1-12.
112. If the Applicant were to be returned to the community, he would live with Ms Marsh and Child A. Over and above the natural benefit that any child would have from a close relationship with their father, Child A would have the benefit of an additional committed carer and potential financial supporter. If the Applicant were to be removed, this would be impossible. There is no prospect of Ms Marsh and Child A moving to Africa. All of their supports are here.
113. If the Applicant were to be returned to the community, he could be of great assistance to Child A and Ms Marsh, both emotionally and materially. If he were to be removed, his ongoing contact would be limited to electronic means. Assuming in the Applicant’s favour that he did not reoffend, it would be very much in the interests of Child A and his mother to have the Applicant around.
114. I note all of the submissions made in the Applicant’s SOFIC dated 8 July 2022 in particular at paras 22-37.[53]
[53] Exhibit 1, pp 6-10, paras 22-37.
115. Having regard to all of the above, primary consideration 3 weighs very heavily in favour of revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
116. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
117. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
118. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
119. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
120. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that 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 Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[54]
[54] See 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.
121. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
122. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out in Annexure B.
(b)The other matters set out above
Conclusion: Primary Consideration 4
123. Primary consideration 4 weighs against revocation of the cancellation of the Applicant’s visa.
Other Considerations
124. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
125. In Plaintiff M1,[55] the High Court said that the Tribunal is required to ‘read, identify, understand and evaluate’ the Applicant’s representations raising a potential breach of Australia’s international non-refoulement obligations.[56] That the Tribunal must:
[55] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
[56] Ibid, at [9].
……
have regard to what is said in the representations, bring their mind to be upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate”.[57]
[57] Ibid, at [24].
In this matter, the Applicant fled Liberia as a child after his father was killed during the civil war. He eventually sought refuge in Australia. 126.
127. He now accepts that the conditions in Liberia have changed, and he does not claim any non-refoulement considerations.[58]
[58] Exhibit 1, p 13, para 46.
128. Before he held the visa that is the subject of this current application, he held a Temporary Protection Visa. This ceased when the Applicant was granted a Subclass 851 Resolution of Status visa.
129. In order to be granted that Temporary Protection Visa a finding was made by a delegate of the Minister that protection obligations were engaged pursuant to s 36 of the Act.[59]
[59] Exhibit 5, SG53, p 461.
130. The Resolution of Status visa and the visa the subject of this application did not disturb or nullify that protection finding.
131. Pursuant to s 197C(3) of the Act, the Applicant is not able to be deported to Liberia unless one of the following applies:
(i) the decision in which the protection finding was made is quashed or set aside;
(ii) a decision is made by the Minister under s 197D(2) in relation to the Applicant that he “is no longer a person in respect of whom any protection finding…..would be made…”.
(iii) the Applicant asks the Minister, in writing, to be removed to Liberia.
There is no evidence to suggest that either alternative (i) or (ii) apply, or indeed ever will apply.132.
If the Applicant were to ask the Minister in writing to be removed to Liberia or even Nigeria, pursuant to s 197C(3)(c)(iii), s 197C(3) would no longer apply to prevent his removal. Section 198(1) of the Act would require the Minister to remove the Applicant as soon as reasonably practicable. 133.
134. Australia would not be in breach of its non-refoulement obligations or s 197C of the Act if the Applicant were to be voluntarily removed. To the extent that voluntary removal is a possibility, the Tribunal must consider the impediments that the Applicant would likely experience if returned.
The Applicant has previously asked to be removed to Nigeria, but that request has now been revoked. There is no reason to believe that the Applicant will make such a request again in the future. The possibility that the Applicant could languish in detention indefinitely until he “volunteered” to be removed, would vitiate any notion of free will. 135.
If the Tribunal were to affirm the decision under review, the Applicant would therefore be likely to, remain in immigration detention with no ‘chronologically fixed endpoint’.136. [60] There was nothing before the Tribunal to suggest that he would be granted any other class of visa by the Minister. That said, I note the decision of Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, it states:[61]
[60] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
[61] [2022] FCA 878.
“……
The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.
It follows that the Minister’s assessment, that the applicant faced “the prospect of immigration detention for an indefinite period”, was accurate. The Minister did not purport to suggest that this prospect was other than the most likely. He accepted and confronted this as the most likely prospect for the applicant, subject to the possibility of a Ministerial exercise of power the effect of which would be to release the applicant into the Australian community from detention under the Migration Act. The relevance of this for the legality of the Minister’s consideration of the national interest is that, unlike CWY20, there was no accepted and inevitable breach of Australia’s international non-refoulement obligations as there would have been if the applicant in that case had been deported to Afghanistan. Rather, there was a likelihood that the applicant would face indefinite detention in Australia, subject to a possibility of a Ministerial exercise of power ending that detention in the future. When assessing the issue of the legal reasonableness of the Minister’s evaluation of the national interest, the difference cannot be disregarded.
Proposition (c) above (indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party) is also contestable. In CWY20 the Acting Minister found that removal of the applicant in that case to Afghanistan would breach Australia’s international non-refoulement obligations. There is no equivalent finding in the present case that indefinite detention of the applicant (or, accurately, the prospect, in the sense of likelihood of, indefinite detention of the applicant) would be a breach of Australia’s international obligations. Nor is that manifestly correct.
Article 9.1 of the ICCPR provides that:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The UHDR provides that:
Article 3
Everyone has the right to life, liberty and the security of person.
…
Article 5
No one shall he subjected to torture or to cruel, inhuman or degrading treatment or punishment.
…
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 16 of the CAT provides that:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.
……”[62]
[62] Ibid, [42]-[48].
137. Keeping the Applicant in indefinite detention may be contrary to Australia’s international obligations and hence, national interests. In this regard I note that in BNGP, Jagot J states:
“……
I do not need to decide if these contentions are right or wrong. The relevant point for present purposes is that the alleged legal consequence of the Minister’s decision, being indefinite detention in breach of Australia’s international legal obligations, is contestable. The principle that the Minister making a decision under s 501 of the Migration Act must consider the legal consequences of the decision being made (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1) applies to the inevitable and direct legal consequences of the exercise of the statutory power in question. As far as I know it has not been held that in making such a decision under s 501 or in evaluating the national interest of exercising the ultimate discretion under s 501A(2), the Minister must take into consideration, if relevant in the circumstances, a reasonably arguable but contestable legal consequence of the decision or else the decision will be legally unreasonable.
The Minister submitted that CWY20 is not authority for the proposition that, in forming the state of satisfaction described in s 501A(2)(e), a failure by a decision-maker to have regard to Australia’s international non-refoulement obligations will result in that state of satisfaction not being attained reasonably. I agree. CWY20 is authority for the proposition only that such a decision may be legally unreasonable depending on the circumstances.
The Minister submitted that the observations of Allsop CJ in CWY20 are not to be understood as saying that Australia’s international non-refoulement obligations are a mandatory relevant consideration in every decision under s 501A(2) of the Migration Act. Again, for the reasons already given, I agree.
The Minister submitted that the better view is that CWY20 stands for the narrower proposition that, depending on the circumstances of the case, a failure to take Australia’s international non-refoulement obligations into account in forming the state of satisfaction in s 501A(2)(e) may supply the inference that the decision-maker did not attain that state of satisfaction reasonably. I agree other than that a conclusion of legal unreasonableness is not an inference – it is a legal conclusion. As such, the better view of CWY20 is that, depending on the circumstances, a failure to consider Australia’s international non-refoulement obligations (a non-mandatory consideration) may make a decision legally unreasonable.
The Minister submitted that even if CWY20 remains good law following the High Court’s judgment in Plaintiff M1 (which the Minister disputes), it does not control the outcome of this case. Again, I agree for the reasons already given.
As noted, the conclusions in ENT19 involved a statutory context (the absence of s 197C(3) of the Migration Act) and facts different from the present case. In particular, in ENT19 the Full Court characterised the applicant’s grievance as that he “would be refouled, regardless of his wishes”, and this reflected the relevant statutory provisions in that case (which did not include s 197C(3)): [56]. But, as also discussed, the reasoning of the Full Court in ENT19 also proceeded on a broader basis, that the legal consequences of the Minister’s decision included either refoulement in breach of Australia’s international obligations or indefinite detention, and that in evaluating the national interest, it was legally unreasonable for the Minister not to consider those legal consequences.
This reasoning in ENT19 appears to have assumed that continued detention (as required by ss 189 and 196), if the person could not be removed due to Australia’s international non-refoulement obligations, would be indefinite detention in breach of Australia’s international obligations. The reasoning in ENT19 also appears to have assumed that such continuing detention would be lawful under Australian law, despite the detention (arguably) not being for the purpose of removal or assessment. In this regard I note that in Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 391 ALR 562, also decided before the insertion of s 197C(3) into the Migration Act, the High Court said at [26]:
The correctness of the constitutional holding in Al‑Kateb [Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562], that ss 189, 196 and 198 are valid insofar as they authorise and require detention of an unlawful non-citizen even where removal is not reasonably practicable in the foreseeable future, does not arise for consideration in the present case.
This critical question arises (but, insofar as I am aware, remains unanswered, particularly in the context of the operation of s 197C(3) of the Migration Act) because of the principle from CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [374] per Gageler J that:
deriving from Ch III of the Constitution, …a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved.
In support of this proposition, his Honour cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 33; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [138]–[140]; and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 at [25]–[29].
This question also does not arise directly in the present case. It arises indirectly only in that the continuing detention of a person in accordance with ss 189 and 196 of the Migration Act, who is not able to be returned to a country due to international non-refoulement obligations (now as provided for in s 197C(3) of the Migration Act), may be in breach of Australian law. If it is in breach of Australian law, the detention can and will be brought to an end by a court of competent jurisdiction in response to an application to that end brought by the applicant. For present purposes what is relevant is that this reinforces the contestable character of the applicant’s proposition that a legal consequence of the Minister’s decision will be the indefinite detention of the applicant and that such indefinite detention will place Australia in breach of its international obligations.[63]
[63] Ibid [51]-[60].
To the extent that the Applicant has mental health issues, indefinite detention would likely aggravate his condition.138.
This matter is complicated somewhat by the Applicant’s clear connections to Nigeria. If removal to Nigeria were a possibility, the protection finding in respect of Liberia may not be relevant. The issue would be one of the impediments that he would suffer if removed, or possibly refoulment issues, though none are claimed. There is, however, no evidence before the Tribunal to suggest that the Applicant has a right to enter and remain indefinitely in Nigeria. The Respondent has not provided any evidence to the effect that a country other than Liberia may be prepared to accept the Applicant. This is so notwithstanding the Applicant’s now revoked request to be sent to Nigeria. The Respondent when asked, did not advance this proposition. I am therefore left with Liberia as the only known place, to which the Applicant might presently be deported.139.
The Applicant’s removal to Liberia is presently neither required nor authorised. In the absence of a voluntary request for removal, the Applicant may face the prospect of being detained for an indeterminate period. I note that the Minister accepts this consideration weighs against a decision to refuse the application. 140.
141. In my view, this other consideration weighs heavily in favour of revocation.
(b) Impediments if removed
142. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
143. This other consideration is only relevant in the very unlikely event of the Applicant requesting to be removed, as discussed above.
144. Applicant is currently 35 years of age There is no indication that he suffers any physical impairment or that he would not be capable of working in Liberia. There are questions about his mental health that have not been the subject of compelling evidence.
145. He has no family or contacts in Liberia but is familiar with the culture and language. He would undoubtedly suffer initial difficulties re-establishing himself and accessing mental health care.
146. The level of social, medical and/or economic support available to the Applicant would be vastly inferior to those available in Australia. I note the submissions made on the Applicant’s behalf at paras 48-53 of his SOFIC dated 8 July 2022.[64]
[64] Exhibit 1, pp 13-15.
147. This consideration is probably irrelevant, for the reasons set out above. In the unlikely event that the Applicant requests to be deported, this other consideration weighs in favour of revocation.
(c) Impact on victims
148. This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
149. There is no evidence relevant to this consideration.
150. This Other Consideration (c) is neutral
(d) Links to the Australian Community
151. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
152. The Applicant has two very strong links to the Australian community, being Child A and Ms. Marsh. They are both Australian citizens. They would both benefit from the Applicant’s support and assistance. He is on good terms with Ms Marsh’s family. Given his lengthy periods of incarceration, he has not developed extensive community networks, though he was involved with a church and a soccer club.
153. I also note that the Applicant commenced offending shortly after his arrival in Australia and that, as previously mentioned, in the 16 years since arriving in Australia in February 2006, the Applicant has been on bail, on parole or in prison/ detention for all but 15 months (February 2006- May 2007). His current head sentence does not expire until 16 August 2024. The Direction requires this to be considered as a negative element in this balance.
154. I note the submissions contained in paragraphs 56- 65 of the Applicant’s SOFIC.[65]
[65] Ibid, pp 16-19, paras 56-65.
155. This Other Consideration (d), paragraph 9.4.1 of the Direction, on balance, weighs in favour of revocation.
Impact on Australian business interests
156. There was no evidence on this consideration, so it is neutral.
157. This Other Consideration (d), paragraph 9.4.2 of the Direction, is neutral.
Findings: Other Considerations
158. The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant, but consideration of the prospect of indefinite detention weighs heavily in favour of revocation.
(b)extent of impediments if removed: also probably not relevant for the reasons set out above, but to the extent that it has any application, it weighs in favour of revocation.
(c)impact on victims: neutral.
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation; and
(e)the impact on Australian business interests: neutral.
CONCLUSION
159. It is necessary to weigh up all of the primary and other considerations.
160. Primary consideration 1 weighs heavily against revocation.
161. Primary consideration 2 is neutral.
162. Primary consideration 3 weighs heavily in favour of revocation.
163. Primary consideration 4 weighs against revocation.
164. Other considerations, (c) and (e) are neutral.
165. Other consideration (a) and (b) are probably not relevant for the reasons set out above. The prospect of indefinite detention, however, weighs heavily in favour of revocation.
166. Other consideration (d) weighs in favour of revocation.
167. In my view, the proper application of the Direction favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
Decision
168. The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.
I certify that the preceding one hundred and one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
....................[sgnd]..................................
Legal Administrative Assistant
Dated: 19 August 2022
Date of hearing: 10 & 11 August 2022 Advocate for the Applicant:
Dr Timothy Haines
Emulink Migration & Intercultural Consultancies
Advocate for the Respondent: Ms Claire Stokes
Australian Government Solicitor
Annexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Applicant
Statement of Facts, Issues and Contentions dated 8 July 2022
2
Respondent
Statement of Facts, Issues and Contentions dated 25 July 2022
3
Applicant
Evidence in Reply dated 3 August 2022
4
Respondent
G-Documents dated 16 June 2022
5
Respondent
Supplementary G-Documents dated 21 July 2022
6
Applicant
Bundle of Documents filed 8 July 2022, containing:
1. Witness Statement of Rachel Marsh
2. Support Letter from Alexandria Chappell
3. Expert Witness Statement of Sophie Coote
4. Witness Statement of Bernard Gelston
5. NDIS Initial and Final Assessment Report
6. Centrelink Medical Report
7. Gordon McKay Child Development Report
8. Country Report
7
Applicant
Bundle of Documents filed 3 August 2022, containing:
1. Rescindment of Request for Deportation
2. Witness Statement of Brenda Marsh
3. Witness Statement and Offer of Employment from Alistan Bieke Baytur
8
Applicant
Email from Dr Haines dated 5 August 2022 regarding an error
9
Respondent
Applicant’s Parole Order dated 5 August 2022
Annexure B – Applicant’s Offending History
| Court | Court Date | Offence | Court Result |
| Holden Hill Magistrates Court | 05/08/2010 | Fail to comply with Bail Granted agreement | Convicted discharged without penalty |
| Adelaide District Court | 25/08/2011 | Import/export marketable quantity of border controlled drugs (heroin) Attempt import/export marketable quantity of border controlled drugs (cocaine) | On both charges: convicted. Sentenced to 5 years 3 months imprisonment minimum of 3 years |
| District Court of South Australia | 25/05/2011 | Attempt to commit an offence possess commercial quantity of border controlled drug/plant attempt to commit an import or export a border controlled drug or plant Fail to comply with Bail Granted agreement (3) | Sentenced 5 years 3 months imprisonment non parole period 3 years Sentenced 9 months imprisonment |
| Adelaide District Court | 14/10/2016 | Possess commercial quantity of imported border controlled drugs or plants | Convicted. Sentenced to 10 years 6 months and 8 days imprisonment. Non-parole period of 6 years and six months to commence on 17 February 2015. Methamphetamine |
| District Court of South Australia | 14/10/2016 | Attempt to commit an offence import or export a border controlled drug or plant | Sentenced to 9 years 6 months imprisonment |
Annexure C – An Agreed Summary of the Applicant’s Periods of Detention and Parole
Date Description Time in custody / at liberty etc 12 June 2005
Arrived in Australia on false passport
and was immediately taken into detention after the fraud was identified at the airport 13 June 2005
Detained in Villawood IDC
14 June 2005
Moved to Baxter IRPC
7 July 2005
Moved to Alternative Place of Detention in SA
29 July 2005
Minister made a residence
In immigration detention 1
determination - which permitted him to months 17 days reside in the community 1 September 2005
Applicant granted a visa, no longer
subject to any detention requirement 31 May 2007
Arrested and released on bail
At liberty 1 year, 10 months, 2
days 5 February 2009
Breaches of bail (overseas travel)
On bail 1 year, 11 months, 13
19 March 2009 days 12 May 2009
Imprisoned with trial by jury guilty
verdicts 26 February 2010
Released on bail following successful
In custody 9 months, 15 days
appeal and awaiting retiral 26 May 2010
Breach of bail (failure to report to police)
17 November 2010
Breach of bail (overseas travel)
25 November 2010
Arrested on return to Australia for
On bail for 9 months
breaching bail 16 May 2013 Placed in home detention (pre-parole) On home detention, 6 months and 9 days 24 November 2013
Discharged from home detention and
In custody 3 years, 30 days
released on parole (including home detention) 17 February 2015
Arrested and imprisoned
On parole 1 year, 2 months, 25
days At time of the
In custody 7 years, 5 months, 24
Tribunal hearing on 10 August2022 days TOTAL
At liberty (under no obligation to the Court)
1 year, 10 months, 2 days
In detention or custody (including
11 years, 5 months and 27
home detention) days In community on bail
2 years, 13 days
In community on parole
1 year, 2 months, 25 days
Annexure D – Copy of Conditions of Applicant’s Parole OrderCOMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 PAROLE ORDER
“I, JENNIFER PERRIN, a delegate of the Attorney-General of Australia, pursuant to the delegation under subsection 17(2) of the Law Officers Act 1964, direct under subsection 19AL(l) of the Crimes Act 1914, that
JOSEPH CHUKWUMA AKA JOSEPH TOE
in prison in the State of Victoria be released from prison on parole on 9 August 2022.
On 14 October 2016, the District Court of South Australia sentenced you to 10 years, 6 months and 8 days' imprisonment, commencing on 17 February 2015, for attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to subsections 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Criminal Code).
The court fixed a non-parole period of 6 years and 6 months, which expired on 16 August 2021.
Following your release on 9 August 2022, you will be on parole until your parole period ends on 24 August 2025.
If you are subject to removal from Australia under the Migration Act 1958, during any period that you are in custody pending your departure from Australia or following your removal from Australia, you will only be subject to conditions 1, 2 and 3 of this parole order.
However, if you are permitted to remain in Australia, or you return to Australia before the expiry of your parole order, you will also be subject to condition 4 of this parole order.
Conditions
1.While you are on parole, you must be of good behaviour and not violate any law.
2.If you are required to leave Australia under the Migration Act, and you subsequently return to Australia before 24 August 2025, you must provide details of your intended date of return and an Australian address to the Commonwealth Attorney-General's Department, at the address below, before you return. You must also comply with any directions given to you by the Commonwealth Attorney-General or a delegate for your return.
3.You must not use, possess, manufacture, traffic or sell any drug or precursor, as defined from time to time under Division 301 of the Criminal Code.
4.The following parole conditions apply while you are in Australia:
(a)Within 24 hours of your release, you must report to: North East Community Correctional Centre at 8 Gaelic Avenue, Holden Hill SA 5088, or as directed by a parole officer.
(b)You will be supervised by a parole officer until your supervision period ends on 24 August 2025.
(c)You must obey all reasonable directions given to you by your parole officer.
(d)You must report to your parole officer as requested by him or her.
(e)You must live in a place of which your parole officer approves. If you change your address, you must tell your parole officer within 48 hours, or as soon as possible.
(f)Your employment, both paid and unpaid, must be approved by your parole officer. If you change your job, you must tell your parole officer within 48 hours, or as soon as possible.
(g)You must not associate with anyone who uses, possesses, manufactures, traffics or sells a drug or precursor, as defined from time to time under Division 301 of the Criminal Code.
(h)You must disclose details of your financial affairs to your parole officer if requested to do so.
(i)You must attend financial counselling as directed by your parole officer.
(j)You must authorise and direct all medical, psychiatric, psychological, and other professional advisers or counsellors to make available to your parole officer a report on your conditions, treatment and progress on request.
(k)You must submit to electronic monitoring as directed in writing by your parole officer. If such a direction is given, you must comply with all conditions set out in that direction.
(l)You must submit to a curfew as directed in writing by your parole officer. You must reside at an approved address between the hours of 10.00pm and 6.00am, or as directed in writing by your parole officer. You must comply with all conditions set out in any direction by your parole officer.
(m)You must attend one-to-one counselling for cognitive skills with your parole officer or other professional at the direction of your parole offic.er.
(n)You must not leave the State of South Australia, without first obtaining the written permission of the Chief Executive, Department for Correctional Services, 400 King William Street, Adelaide.
(o)You must not leave Australia without first obtaining the written permission of the Attorney-General or a delegate and if permission to leave Australia is granted you must comply with the conditions of your permission to travel.
Although you are being released on parole, you are still under sentence. If you commit an offence or breach any of the conditions of this parole order, it may be revoked and you may be returned to prison.
The Attorney-General or a delegate may, at any time before the parole period ends, vary or revoke any of the conditions of this parole order or impose additional conditions.
……”
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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