HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1634
•3 June 2020
HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1634 (3 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1543
Re:HMDS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 June 2020
Place:Sydney
The decision under review is set aside and the matter is remitted to the Respondent for reconsideration in accordance with a direction that the Applicant’s application for a Bridging C (Class WC) visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
.............................[sgd].............................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – discretionary visa refusal under s 501(1) of Migration Act 1958 – failure to pass character test – substantial criminal record – whether there is another reason to exercise discretion to refuse visa – ministerial Direction no. 79 – primary considerations – protection of the Australian community – the best interests of minor children – expectations of the Australian community – other considerations – international non-refoulement obligations – impact on family members – weighing of primary and other considerations – reviewable decision is set aside and remitted
LEGISLATION
Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, Preamble, Part B
Migration Act 1958 (Cth) ss 500, 501, 501K
NSW Uniform Civil Procedure Rules 2005 (NSW) sch 7
CASES
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569
FCFY v Minister for Home Affairs [2019] FCA 1222
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Harrison and Minister for Immigration and Citizenship [2009] AATA 47
Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
PQSM v Minister for Home Affairs [2019] FCA 1540
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tauariki and Minister for Immigration and Citizenship [2013] AATA 475
The Republic of Nauru v WET040 [No 2] [2018] HCA 60
Trang and Minister for Home Affairs (Migration) [2019] AATA 4087
Tuioti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 606
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 50 ALR 608
VKTT v Minister for Home Affairs [2019] FCA 1018
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323
SECONDARY MATERIALS
Busybuddies, ‘Ministry of Sports Gets New Permanent Secretary’, Busybuddies (online), 19 December 2019 < of Foreign Affairs and Trade, DFAT Country Information Report Nigeria (9 March 2018)
Human Rights Watch, ‘Nigeria: People with mental health conditions chained, abused’, Human Rights Watch (online), 11 November 2019 < align="left">Justice Duncan Kerr, Persons Giving Expert and Opinion Evidence (30 June 2015) Administrative Appeals Tribunal < align="left">Mbamalu, Socrates, ‘Nigeria has a mental health problem’, Al Jazeera (online), 3 October 2019 < align="left">P.M. News, ‘New perm secretary resumes at ministry of youth’, P.M. News (online), 24 December 2019 < FOR DECISION
Chris Puplick AM, Senior Member
3 June 2020
PRELIMINARY
As part of the discussion in this matter makes reference to an application for a protection visa on the part of the Applicant and as the review relates to the Applicant’s application for a protection-related bridging visa, as required by section 501K(2) of the Migration Act 1958 (Cth) (Act), pseudonyms have been substituted for the Applicant, members of his immediate family and others who may cause the Applicant to be identified. The Applicant is otherwise referred to as HMDS (Applicant), his wife as Mrs ME, his ex-partner as Ms TC, his stepson as ZK and his biological daughter as CE.
THE APPLICATION
HMDS seeks review by this Tribunal of a decision made by a delegate of the Minister (Respondent) to refuse to grant his application for a Bridging C (Class WC) visa (refusal decision). The refusal decision was made under s 501(1) of the Act on 3 January 2020 and the Applicant was notified on 12 March 2020. The review application to this Tribunal was made on 17 March 2020.
The hearing was conducted on 13 and 14 May 2020. Under s 500(6L)(c) of the Act, the Tribunal must make its decision within an 84-day period from the date of notification of the decision to the Applicant. In the absence of any such decision by the Tribunal, the decision under review is taken to be affirmed. That 84th day is 4 June 2020.
Under restriction imposed as a result of the COVID-19 pandemic the parties were all heard by video link using the Skype system. The technology allowed for full participation by all parties and the Tribunal is satisfied that procedural fairness was accorded to all parties.
THE FACTS
The facts in this matter are set out in the Respondent’s statement of facts, issues and contentions and the Tribunal gratefully adopts and reproduces them below, with relevant names substituted with pseudonyms (see above), unique personal identifiers redacted where necessary and references to the section 501G documents (G documents) omitted.
9The applicant is a 33 year old citizen of Nigeria (born July 1986).
10The applicant is married to an Australian citizen, Mrs ME, and they have been married since October 2009. The applicant has a step-son, ZK who is 4 years old. The applicant also has a biological daughter, CE, who is 1 year old. The mother of his daughter is Ms TC. The applicant also has extended family members in Australia, including his parents-in-law, two uncles and grandparents.[1]
[1] There is some confusion about the extent of the Applicant’s family members in Australia. His 2016 Personal Circumstances Form (section 501G documents (G documents) at 400) listed none whereas his 2019 Personal Circumstances Form (G documents at 47) lists his father-in-law, mother-in-law and 3 brothers-in-law by name and then “2 uncles” and “2 grandparents” in Australia. The latter 4 are not listed as “close family members” but rather as “other relatives”. The Tribunal regards it as unlikely that if his mother and the rest of his Nigerian family are still resident in Nigeria that his grandparents would be in Australia. It may be that reference here is to his wife’s extended family. However, no reference was made to any of these family members during the course of the Tribunal’s hearing nor in submissions to the Tribunal. It is also clear that the 2016 form was completed by or with the assistance of Mrs ME (G documents at 399).
11On 19 July 2008, the applicant first arrived to (sic) Australia on a Visitor visa. Between 20 October 2008 and 9 May 2010, he remained onshore without a valid visa as an unlawful-non-citizen.
12The applicant has departed Australia once since he first arrived, from 10 October 2010 to 6 March 2011.
13On 7 February 2011, the applicant was granted a Partner (Provisional) (Class UF) visa, with his wife as his sponsor.
14On 7 March 2014, he pleaded guilty and was convicted of attempting to possess a marketable quantity of a border controlled drug (heroin) and was sentenced to seven years and nine months imprisonment.
15On 8 August 2016, on the basis of the above offence, the applicant's Partner (Provisional) (Class UF) visa was mandatorily cancelled under s 501(3A) of the Act.
16On 9 May 2017, a delegate of the Minister decided to revoke the mandatory cancellation under s 501CA(4) of the Act.
17On 2 (sic; scil. 22) January 2018 the applicant was convicted of 'Drive with low range PCA - 1st off', fined $500 and disqualified from driving for three months. The applicant has also been issued Traffic infringement notices on a number of other occasions, ranging from 29 July 2011 to as recent as 26 December 2019.
18On 12 May 2018, records produced by NSW Police indicate that the applicant allegedly physically and verbally assaulted his housemate. This allegedly resulted in the housemate having pain in his right ankle and swelling to the right side of his forehead, as well as a broken laptop. The police records indicates (sic) that the accused was charged and the matter before the Court. [The Tribunal interpolates to note that there is no evidence before the Tribunal that this matter was further proceeded with and there is no record of any prosecution or conviction arising in relation to this alleged incident.]
19On 8 April 2019, the applicant's Partner (Migrant) (Class BC) visa was refused on the basis that the relationship criteria was (sic) not satisfied. [The Tribunal interpolates to record that at the hearing the Respondent resiled from the express findings of the delegate on this matter[2] and accepted that the evidence established the bona fide and ongoing nature of the relationship between the Applicant and his wife.]
20On 25 July 2019, the applicant applied for a Protection visa. In association with the Protection visa, he also applied for the Bridging visa.
21On 18 October 2019, the Department gave the applicant notice of its intention to consider refusing his application for a Bridging Visa under s 501(1) of the Act.
22On 3 January 2020, the delegate refused to grant the applicant his Bridging Visa under s 501(1). The delegate found that the applicant failed the character test, namely he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months, for an offence against a law of the Commonwealth, a State or Territory; ss 501(6)(a) and 501(7)(c). Further, the delegate exercised their discretion under s 501(1) to refuse the Bridging Visa application.
23On 17 March 2020, the applicant sought review of the delegate's decision to refuse to grant the applicant a Bridging Visa in the Tribunal.
24On 24 March 2020 a delegate of the Minister refused to grant the applicant a protection visa.
THE APPLICANT’S CRIMINAL RECORD
[2] Supplementary section 501G documents (Supplementary G documents) at 58-60.
Drug offence
On 7 March 2014 the Applicant was convicted in the NSW District Court of the offence of “attempting to possess a marketable quality of a border-controlled drug, namely heroin”. He pleaded guilty to the charge.[3] The date of the offence was 20 September 2011.
[3] G documents at 23.
NSW Police records indicate that a related charge, arising from the same incident, of “supply prohibited drug ˃ indict. quantity (not cannabis) – SI” was the subject of a decision by the Director of Public Prosecutions not to proceed.[4]
[4] Supplementary G documents at 16.
The relevant details of this case are that the Applicant was employed by a gang of predominantly Nigerian nationals to make contact with a drug courier who had brought heroin into Australia by ingesting certain pellets containing 381.35 grams of pure heroin and that he was to obtain those drugs from her and deliver them to the principals in the criminal activity.[5] This criminal activity was being monitored by the law enforcement authorities and the Applicant was arrested at the point of contact with the drug courier.
[5] G documents at 26.
On the same day as the arrest, a search of the Applicant’s home was conducted by the police where they recovered an amount of 32.70 grams of pure heroin from a suitcase owned by the Applicant.[6]
[6] Ibid at 25.
The maximum penalty for the offence in question is 25 years imprisonment. The Applicant was sentenced to a term of imprisonment of 7 years and 9 months with a non-parole period of 5 years. In the sentencing, His Honour recommended that parole actually be granted on the expiry of the non-parole period.[7]
[7] Ibid at 30.
Prescribed concentration of alcohol (PCA) offence
On 24 December 2017 the Applicant was involved in a motor vehicle accident in which several vehicles were involved and damaged. It appears that no personal injuries were sustained. The Applicant had caused this accident and on testing was found to have a blood alcohol reading of 0.069.[8] The Applicant states that this incident resulted from his feeling “stressed and overwhelmed” in adjusting to work life following release from prison and detention, as a result of which he went out drinking with mates from his workplace. He consumed five or six drinks over a 4-hour period.[9]
[8] Supplementary G documents at 8.
[9] Applicant’s statement dated 9 April 2020 (Applicant’s statement); Supplementary G documents at 8.
He was convicted in the Burwood Local Court on 22 January 2018 of the offence of “drive with low range PCA – 1st offence” for which he was fined $500 and disqualified from driving for 3 months.[10] The offence in question is a criminal offence.
[10] G documents at 22; Supplementary G documents at 16.
OTHER MATTERS
There are no other criminal or other convictions recorded against the Applicant. However, he has a number of minor traffic infringement notices recorded against him, none of which appear to have led to court appearances or licence suspensions.[11]
[11] Supplementary G documents at 20-24. Offences occurred between 29 July 2011 and 26 December 2019.
The Respondent has drawn attention to a number of incidents in which the Applicant has been involved in conflicts with authorities and other people while incarcerated or in immigration detention. These involved non-attendance at musters, minor fights at the Wellington Correctional Centre, and incidents with a roommate at the Villawood Immigration Detention Centre and confrontations with the authorities there.[12] The Tribunal places no serious weight on these matters. There is no pattern of defiance or wilful misbehaviour – they are the ordinary manifestations of life in these institutions and they fall within the “probabilities of ordinary human experience”[13] in these circumstances.
[12] Supplementary G documents at 26-35, 23-24 and 38-42; Further supplementary section 501G documents (Further supplementary G documents) at 29.
[13] The Republic of Nauru v WET040 [No 2] [2018] HCA 60, [35].
While in the community on parole, there are various reports from the parole authorities which record the Applicant’s response to supervision as “satisfactory” and note both his abstinence from drugs and his stable full-time employment.[14]
[14] Further supplementary G documents at 34-38.
SENTENCING AND OTHER REMARKS
In the sentencing remarks of Judge Blackmore, related to the drug offence, His Honour noted that while the Applicant was “a trusted lieutenant in the drug importation business”[15] that nevertheless he had a prior record of “good character”[16] and that:
[w]ith the support of his wife, who is a person of obvious good character, he does have reasonable prospects of rehabilitation. The offender wrote a letter to the Court and I accept that he is contrite for his actions.[17]
[15] G documents at 27.
[16] Ibid.
[17] G documents at 28.
These considerations led His Honour to impose a sentence which His Honour described specifically as “a more lenient sentence”.[18]
[18] Ibid at 27.
The Police Fact Sheet of the PCA offence includes the following:
Whilst in custody, the Accused stated, “I know, it’s over” and “What have you done, what have you done” and showed remorse for his actions.[19]
ASPECTS OF THE APPLICANT’S PERSONAL HISTORY
[19] Supplementary G documents at 8.
Nigeria
The Applicant states that in 2007, while still resident in Nigeria, he was offered a position in the Ministry of Youth Development by his uncle who was, at the time, the Permanent Secretary of that Department. He states that he acted as a personal assistant to his uncle and that his job involved undertaking numerous trips around the country to promote the work of the Ministry. However, he goes on to say that his uncle was a corrupt official who withheld part of his (the Applicant’s) salary, and that the Ministry itself failed in its responsibilities to young people in Nigeria and was “useless” and making “no progress” on the delivery of programmes. He also states that, as a result of the perceived failures of the Ministry, he and other officials were subject to threats and acts of actual physical violence by the then-youth community.[20]
[20] G documents at 451-452; Applicant’s statement.
In 2008 the Applicant was chosen, because of his position in the Ministry, to be one of the Nigerian representatives/ delegates to the World Youth Day conference of the Catholic Church being held in Australia. He entered this country lawfully on 19 July 2008 holding a Tourist visa but when it expired on 20 October 2008 he did not return to Nigeria and remained in Australia as an unlawful non-citizen.
Drug use
The Applicant states that he was not a drug user while living in Nigeria but that on his return to Australia in 2011 he fell in with a crowd or co-workers who first introduced him to drug use.[21] He says that he needed this to cope with the pressures of his day-to-day living at that time.[22] His use became extensive and he eventually starting using on a daily basis, with the costs taking all of his income. In evidence, the Applicant was not clear about either the amount of daily drug use or the cost of this habit. He denied ever selling drugs, although he says he was a “distributor”,[23] and attested that once he was incarcerated he ceased using drugs and has been abstinent from them since.
[21] G documents at 409.
[22] Applicant’s statement.
[23] Ibid.
In relation to the drugs found in the suitcase at this home at the time of the police raid, the Applicant told the Tribunal in oral evidence that he had forgotten where in the home he had concealed them and had searched for them, unsuccessfully, on previous occasions.
Visa status
As noted above, the Applicant has held a variety of visas while in Australia. He arrived on a Tourist (Class TR) visa which was valid from 1 July 2008 to 19 October 2018. He was then in Australia from 20 October 2008 to 9 May 2010 unlawfully. The Applicant then held a series of renewable Bridging E (Class WE) visas without interruption from 10 May 2010 to 10 October 2010. The Applicant departed Australia on 10 October 2010 and returned on 6 March 2011 holding a Partner (Provisional) (Class UF) visa (granted 7 February 2011) which was in effect until 8 April 2019. At that stage he was then granted a Bridging A (Class WA) visa which ceased to have effect on 13 May 2019.[24]
[24] G documents at 32.
The Protection (Class XA) visa and associated Bridging C (Class WC) visa, which the Applicant applied for on 25 July 2019,[25] were refused on 24 March 2020[26] and 3 January 2020 respectively.[27] The refusal decision of the Bridging C visa is now before this General Division of the Tribunal and the refusal of the Protection visa is, following an application for review made on 26 March 2020, the subject of consideration by the Migration and Refugee Division of the Tribunal.[28]
[25] Ibid at 411-459.
[26] Ibid at 571-580.
[27] Ibid at 8-9.
[28] Applicant’s statement of facts, issues and contentions dated 16 April 2020 at [16].
Marital status and relationships
In October 2009 the Applicant married Mrs ME who is an Australian citizen.[29] She is the mother of a child ZK who is now four years of age. This child was conceived with another man during the period in which the Applicant and Mrs ME were married, and ZK’s birth certificate records the name of his biological father.[30] Mrs ME works in some capacity at Sydney Airport, Mascot.
[29] G documents at 77-78.
[30] Ibid at 79.
Again, while still married to Mrs ME, the Applicant entered into a brief relationship with Ms TC with whom he fathered a child (CE) born in March 2019.[31] Ms TC is a Registered Nurse (RN) working at a major Sydney hospital.
[31] Ibid at 80.
Qualifications
Prior to the Applicant’s offending in 2011 he does not appear to have possessed any formal qualifications and worked primarily in the construction industry as a casual labourer. Since that time, he has undertaken courses of study and qualified with a TAFE Certificate III in Scaffolding[32] and has completed a number of other courses in areas of first aid, forklift truck operation and electrical safety at TAFE. He has completed a number of trade courses while in custody including one in Christian Instruction.[33]
[32] Ibid at 64.
[33] G documents at 65-70; Certificate of participation in Caledonia Induction Course issued by Aveling dated 5 March 2020; Completion of Delta Electricity Contractor Induction; Statement of Attainment (working in confined spaces and in accordance with permit) issued by Pinnacle Safety and Training dated 4 September 2019.
PSYCHOLOGICAL REPORT
On 6 May 2020 Ms Kris North,[34] a forensic psychologist, provided a report about the Applicant to his legal representatives. This report was apparently commissioned from Ms North by the Applicant’s former partner (Ms TC). There were no formal instructions issued to Ms North by any party by way of specific guidance in the preparation of her report or in terms of matters which she was to specifically evaluate or report upon.
[34] BA (Psych), PGDip (Psych), MA (Forensic Psych).
Ms North’s evaluation was based upon a series of documents supplied to her by the Applicant’s legal representatives and she is familiar with the Expert Witness Code of Conduct under schedule 7 of the NSW Uniform Civil Procedure Rules 2005 (NSW),[35] although her report does not indicate familiarity with the Tribunal’s own Guideline for Persons Giving Expert Opinion and Evidence.[36]
[35] Report of Kris North dated 6 May 2020 (North Report).
[36] Justice Duncan Kerr, Persons Giving Expert and Opinion Evidence (30 June 2015) Administrative Appeals Tribunal <>
Ms North’s report was based upon the material provided and a two hour audio-visual link interview with the Applicant in the Villawood Immigration Detention Centre. In addition, the Applicant completed a series of self-reporting questionnaires using the Beck Anxiety Inventory and Beck Depression Inventory. Ms North also made use of the Revised Level of Service Inventory (LSI-R) in coming to conclusions about the Applicant’s risk of reoffending. Ms North interviewed the Applicant’s ex-partner but did not speak to his wife in the preparation of her report.
The lack of formal instructions to Ms North is unfortunate because her report is significantly tainted with a flavour of advocacy rather than a dispassionate assessment of matters which might have been put to her for formal examination and report.
Nevertheless, the Tribunal takes note of the facts that Ms North:
(a)has made a diagnosis of Adjustment Disorder with Depressed Mood (DSM-5 309.00) although this is qualified by her stating that this was “during his period of incarceration”;[37]
(b)found that the Applicant “did not describe experiencing symptoms indicative of posttraumatic stress reaction” when recounting his experiences with the Ministry of Youth Development in Nigeria;[38]
(c)found the Applicant exhibiting signs indicating a “severe range for anxiety” (her emphasis) which was “consistent with his presentation at the time of assessment”;[39]
(d)found the Applicant exhibiting signs indicating a “severe range for depressive symptoms” (her emphasis) “at the time of assessment”;[40]
(e)reported (based on the Applicant’s self-assessment) that he had been abstinent from drugs since 2011;[41] and
(f)indicated that the LSI-R assessment resulted in the conclusion that the Applicant poses a “Iow risk for reoffending” (her emphasis).[42]
[37] North Report at [15].
[38] Ibid at [18].
[39] Ibid at [21].
[40] Ibid at [22].
[41] Ibid at [24].
[42] Ibid at [23].
For the reasons stated above, the Tribunal cannot accord significant weight to these findings.
Even if they were accorded some weight the Tribunal notes that Ms North concludes, in relation to the one diagnosed condition (Adjustment Disorder), that:
… [t]he nature of this condition indicates that the symptoms will persist whilst the stressor continues to be present, however will subside once the stressor has been removed or resolved.[43]
[43] Ibid at [28].
In other words, this diagnosis is situationally-related and of potentially limited temporality. It arises primarily from the stress of incarceration/ detention and his fear of being separated from his family rather than presenting as an underlying or persistent condition. Moreover, the Applicant reported to Ms North that while in custody he has found pharmaceutical intervention beneficial in managing his depression.[44]
[44] North Report at [15].
Ms North’s report does not constitute a sound basis to draw the conclusion that the Applicant suffers from an ongoing mental health condition or problem.
EVIDENCE FROM WITNESSES
Ms TC
The Applicant’s ex-partner, Ms TC, gave oral evidence at the hearing. She is an Australian citizen and works as a Registered Nurse.[45] Her evidence was clear and forthright. She stated that she and the Applicant have had a long-standing friendship and that she had met the Applicant by chance following his incarceration. They had conducted a brief relationship during which time Ms TC had become pregnant to the Applicant, who had accepted their daughter as his biological child and thereafter demonstrated great affection and support for her and the child, both emotionally and financially. She reported that she continued to be a close friend of the Applicant and visited him while he was in detention at Villawood. She stated that she had observed a significant change in the behaviour and attitude of the Applicant as a result of his incarceration: that he had become more thoughtful and considerate and had determined to eschew any return to previous negative behaviours or associations.
[45] Statement of Ms TC dated 11 April 2020; G documents at 83-84.
None of the testimony of Ms TC was challenged or subject to cross-examination by the Minister’s representative.
Mrs ME
The Applicant’s wife, Mrs ME, gave oral evidence at the hearing. Again, the evidence was clear, forthright and persuasive. The Tribunal recalls the favourable comments made in relation to her by the sentencing Judge and agrees with those. The couple first met through their church in November 2008 and started to live together in 2009.[46] Mrs ME was frank about the “up and down” nature of her relationship with the Applicant and her desire to “move on from the past and slowly build our lives together”.[47] Mrs ME also noted the positive change in the attitude, values and behaviour of the Applicant as a result of his experience of incarceration.
[46] G documents at 403.
[47] Statement of Mrs ME dated 9 April 2020; G documents at 85-86.
She explained to the Tribunal that the biological father of her son ZK had originally been opposed to contact between the child and the Applicant but that the Applicant, as stepfather, had been more caring and more deeply involved in ZK’s life and upbringing than his biological father. There are informal parenting arrangements in place for the sharing of care of ZK but Mrs ME is looking to seek a formal court determination of shared care. She stated that she relies upon the Applicant for support of ZK as both a male role model and also because she herself has supporting responsibilities for her injured father for whom her own mother is also the full-time carer.
Under cross-examination Mrs ME elaborated on the child-care arrangements for ZK in which she made it clear that the biological father often indicates that he often “has no time at all” for the child and regards his care as occasionally “inconvenient”. She told the Minister’s representative that there had been several attempts at mediation to establish a formal child-care arrangement between her and the biological father, but these had been unsuccessful and the matter needs to be resolved in court. She noted that the Applicant had a major role in arranging after-school transport for ZK and was particularly involved in his sporting and recreational activities.
Again under cross-examination, Mrs ME admitted that she had not been aware of the Applicant’s drug using behaviour when they were first together and had only discovered this when the police raided their house after the Applicant’s arrest.
Mrs ME has strongly supported the Applicant during his periods of incarceration/ detention and has been a regular visitor to see him at various locations.
The Tribunal took particular note of the fact that Mrs ME stated that she felt no hostility towards Ms TC and that their two children, ZK and CE, regularly played together and have a strong sibling bond between them. The Tribunal noted several photographs of the children together with Mrs ME and the Applicant.[48]
[48] Photographs filed by the Applicant to the Tribunal on 22 April 2020.
The Tribunal has no difficulty in concluding that both Mrs ME and Ms TC have strong personal attachments to the Applicant and that despite the complex circumstances of the relationships and the children, the Applicant’s marriage to Mrs ME is based on feelings of mutual love and support. The Tribunal specifically rejects any findings to the contrary expressed by delegates of the Minister[49] and notes that this position is now accepted by the Respondent.
[49] Supplementary G documents at 58-60; G documents at 18.
REFERENCES
The Applicant submitted a number of character references to the Tribunal and also filed a number of references previously submitted to the sentencing Judge. These were not referred to in submissions to the Tribunal but have been noted. They come from a range of professional, sporting, community and personal sources and most of them are written with knowledge of the Applicant’s offending record whilst nevertheless attesting to his good character and personal qualities.[50]
[50] G documents at 71, 72 and 74; Supplementary G documents at 58; Statements of Mr DT dated 23 January 2014 and Mr BG dated 14 October 2011 which were filed with the Court in relation to the Applicant’s sentencing hearing.
ISSUES BEFORE THE TRIBUNAL
In their essence, the issues before the Tribunal are:
(a)whether the applicant passes the character test (as defined by s 501(6) of the Act); and
(b)if he does not pass the character test, whether it is satisfied that the Applicant's Bridging visa should be refused under s 501(1) of the Act.
The first issue is simply answered in that, having been convicted of an offence of the character described by s 501(6)(a) – thus having a “substantial criminal record”, itself defined as including having been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)) – the Applicant fails the character test.[51] This conclusion is not contested.
[51] Harrison and Minister for Immigration and Citizenship [2009] AATA 47, [63].
In order to determine the second question, reference must be had to the guidelines provided to decision-makers by Ministerial Direction no. 79 (Direction).
MINISTERIAL DIRECTION NO. 79: PROVISIONS
Direction no. 79 provides that the decision is to be approached within the framework of the Principles in paragraph 6.3 of the Direction.
These state:
1Australia 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.
2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Guided by these Principles, the decision-maker must take into account the “primary considerations” in Part B of the Direction in deciding whether to refuse a non-citizen’s visa application.
The primary considerations are listed as:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The decision-maker must also take into account “other considerations”, some of which may be relevant and others potentially not. These include but are not limited to:
(a)international non-refoulement obligations;
(b)impact on family members;
(c)impact on victims; and
(d)impact on Australian business interests.
The Tribunal is required to consider each issue in turn. However, it is important to emphasise two other aspects of the deliberative process:
(a)while the Tribunal must be guided by the Ministerial Direction and give effect to its provisions and requirements, when considering the totality of the evidence:
(i)“[t]he choice of and weight given to, the material before a Tribunal is a matter for it”[52]
(ii)“[t]he Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”[53]
(iii)“The weighing of various pieces of evidence is a matter for the Tribunal.”[54]
(b)although some considerations are listed as “primary” and others as “other” in the Direction, this is not to be taken to imply that “primary” considerations necessarily carry more weight or authority than “other” considerations,[55] and indeed the combined weight of “other” considerations may overbear those designated as “primary”.[56]
[52] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45] per Spender, Moore and Foster JJ (emphasis added).
[53] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27] per French J.
[54] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, [33]: unanimous decision of the High Court.
[55] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[26] per Colvin J; PQSM v Minister for Home Affairs [2019] FCA 1540, [51] per Colvin J; Minister for Home Affairs v HSKJ [2018] FCAFC 217, [24] and [37] per Greenwood, McKerracher and Burley JJ.
[56] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858, [88]; FCFY v Minister for Home Affairs [2019] FCA 1222, [50] per Thawley J.
The designation of some of the considerations as “other” and the possible implication of their lesser status (which is not the case) was adverted to in XFKR where Wheelahan J stated:
To avoid ambiguity, it might have been better to use the term “non-primary considerations”, as Drummond J did in Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897; 113 FCR 268 at [18]-[19] and [21] when considering the terms of Direction No 17.[57]
[57] XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323, [83]. Direction no. 17 was a predecessor direction of Direction no. 79 but, in this respect, was in similar terms.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The elements of the protection of the Australian community consideration are:
11.1 Protection of the Australian community
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decisionmakers should also give consideration to:
(a)The nature and seriousness of the non-citizen's conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
11.1.1 The nature and seriousness of the conduct
1In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(g)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(h)The cumulative effect of repeated offending;
(i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
1In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.
2In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
3In considering the risk 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; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii) evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii) the duration of the intended stay in Australia.
4Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The issue here is essentially one of risk – will the Applicant reoffend? If so, what might be the nature and seriousness of that reoffending?
The Respondents’ position is that there is “a significant risk that the applicant will engage in further criminal conduct”.[58]
[58] Respondent’s statement of facts, issues and contentions dated 30 April 2020 (Respondent’s SFIC) at [42].
In this respect the Respondent draws attention to the seriousness of the offence for which the Applicant was convicted.
This Tribunal has made it abundantly clear that it regards drug-related offences as particularly serious. However, most of these comments have been made in relation to the offence of drug trafficking.[59]
[59] Trang and Minister for Home Affairs (Migration) [2019] AATA 4087 per Deputy President Boyle; SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020 per Senior Member Cameron.
The Applicant points out that he was convicted not of drug trafficking or of supply (this charge was withdrawn by the DPP) but rather of the offence of “attempting to possess a marketable quantity of a border-controlled drug”. Hence, it appears to be argued that the potential reoffending which should be considered is not whether the Applicant would engage in drug trafficking or sale but rather the “lesser” offence of mere possession.
The Tribunal was taken to the decision of Stewart J in ERY19 in which His Honour stated:
Moreover, it is illogical and unreasonable to conclude on the basis of unsubstantiated allegations against someone that there is a risk of the person reoffending; until there is a reasonable basis to infer that the person offended in the first instance, there cannot be any reasonable basis to infer that they might reoffend.[60]
[60] ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569, [55].
The Tribunal was also referred to the lengthy discussion of this point by Yates J in Stowers[61] where His Honour stated:
I am also satisfied that the Tribunal failed to comply with the direction given in para 13.1.2(1)(a) of Direction 79. Paragraph 13.1.2(1) required the Tribunal to come to a “cumulative” assessment. One limb of that assessment was the likelihood of the respondent engaging in further criminal or other serious conduct: para 13.1.2(1)(b). The Tribunal purported to undertake that task by finding that the respondent represented a “relatively low risk” to the Australian community in the future. However, this was not enough to undertake, meaningfully, the task which para 13.1.2(1) required. The Tribunal had to go further and reach a decision on the nature of the harm that might be involved with that “relatively low risk”. Here, the Tribunal’s assessment was necessarily incomplete. Its assessment simply begs the question: a “relatively low risk” of what further criminal or other serious conduct? Without answering that question, the Tribunal could not have arrived at the cumulative assessment that para 13.1.2(1) required.[62]
… Paragraph 13.1.2(1)(a) is, as I have said, forward-looking. It necessarily poses a hypothetical question. The nature of the respondent’s past offending might inform a decision-maker about the nature of any future conduct he might engage in. But the nature of any future conduct does not necessarily mirror each and every, or indeed any, aspect of the respondent’s former criminal conduct. The respondent had engaged in a range of different criminal or other serious conduct (various assaults including those involving domestic violence; stalking/intimidation; property offences; various driving offences; a bail offence; and violent conduct while in immigration detention) which would, or at least could, fall within the description “criminal or other serious conduct”. Paragraph 13.1.2(1)(a) required the Tribunal to turn its mind to, and identify, further criminal or other serious conduct that the respondent might engage in having regard to circumstances existing at the time of the decision, to evaluate the nature of the harm that might be suffered by relevant individuals or members of the Australian community should the respondent engage in that conduct. Paragraph 13.1.2(1)(b) then required the Tribunal to form an assessment of the likelihood of that criminal or other serious conduct occurring. A fair reading of the Tribunal’s reasons shows that it did not undertake the task that para 13.1.2(1) required it to undertake.[63] (Emphasis in original)
[61] Minister for Home Affairs v Stowers [2020] FCA 407. Citations omitted.
[62] Ibid [56].
[63] Minister for Home Affairs v Stowers [2020] FCA 407, [58].
The Tribunal finds it hard to follow the logic of the Applicant on this point. The Direction draws attention to the “hypothetical question” of “further offences or engage in other serious conduct”, not simply to a repeat of the same criminal conduct. Justice Yates refers to not only “that” criminal conduct occurring in the future but also to “other serious conduct occurring”.
Possession of illicit drugs is criminal conduct. Further serious offences or conduct might encompass anything, including the repeat of possession, but equally including a “graduation” to a “higher” level of drug offence such as supply or trafficking. It may even be a repeat of the serious (criminal) offence of PCA.
However, the Tribunal does not believe that the Applicant need rely upon this line of argument. In assessing the risk of reoffending there are a number of factors to consider. Among these, with reference to the specifics of the Direction, are:
(a)The offences did not involve any acts of violence, or sexual violence, nor were they committed against women, minors, vulnerable persons or persons in official positions.
(b)Of the offences for which the Applicant were convicted, they were not committed in places of incarceration or detention.
(c)The sentence imposed by the Court for the drug offence was described by the Court itself as “lenient” and was certainly at the lower end of the sentencing scale, being effectively five years (as per the sentencing Judge’s recommendation for release on parole after five years) out of a maximum tariff of 25 years. Although the Applicant was not given a section 10A bond for a first offence PCA, the penalty imposed was not at the maximum end of the scale and the PCA range offence itself was “low”.
(d)There cannot be any argument that the offences were frequent nor that they were increasing in their trend of seriousness.
(e)There is no cumulative effect of the offences and no attempt to provide false or misleading information or to conceal the existence of the offences. Although the PCA and the Applicant’s traffic offences might be described as “accumulated” within the category of “traffic-related” offences, they do not lead to a negative “cumulative” effect in determining the Applicant’s matter.
It is true that the Applicant was clearly on notice that, once his original Partner visa cancellation was revoked, reconsideration could be given to his visa status “in the event of further criminal offending by you”.[64]
[64] G documents at 131.
The Applicant sought to make something of the handwritten annotation on file made by the Minister’s delegate on 9 May 2017. This note indicates that the Applicant “needs to be absolutely aware that if he reoffends his visa may again be cancelled”.[65] The Tribunal finds that this is exactly what was conveyed to the Applicant by way of the Department’s formal letter of the same date. The extent to which the Applicant was aware of this is not only manifest in the requirement that he sign a written acknowledgement to this effect but even more so in his recorded comments in the police cells following his arrest on the PCA charge where he stated:
“I know, it’s over” and “What have you done, what have you done”.
[65] Revocation under s 501CA of the Migration Act 1958 – Decision by the delegate of the Minister for Immigration and Border Protection: Decision record dated 9 May 2017.
The Tribunal further notes that the same police record attests to the Applicant’s sense of remorse over his actions, and that the sentencing Judge accorded credit for similar expressions of remorse and contrition.
The sentencing Judge furthermore referred to the Applicant’s “reasonable prospects of rehabilitation”.
There was no contestation by the Respondent of the several references, both by the Applicant or by Ms North (admittedly on a self-reported basis), nor by the parole authorities that the Applicant had abstained from drugs since his conviction.
The Tribunal is conscious of the potential seriousness to the community of reoffending behaviour, particularly in any drug-related offences. On the other hand, the Applicant has demonstrated considerable efforts on his part at rehabilitation. He has undertaken various courses and improved his levels of qualification. He has worked on strengthening his relationship with his wife. He has participated positively in community activities, including sports coaching efforts and working with young people.
In terms of the duration of the intended stay in Australia, this may be dependent upon the determination of another Division of this Tribunal which has under review the decision to refuse the Applicant’s Protection visa (see below). Clearly, however, the Applicant himself envisages staying indefinitely in Australia to be with his family and certainly has no intention of returning to Nigeria or seeking to live elsewhere.
Taking all these elements together, and accepting, as required, the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants, it is the assessment of this Tribunal that the Applicant’s risk of offending is minimal to low and that, as a result, the risk to the Australian community is also minimal to low and that this element of the Direction should not weigh to any significant degree against the Applicant.
BEST INTERESTS OF MINIOR CHILDREN IN AUSTRALIA
The elements of the best interests of minor children consideration are:
11.2 Best interests of minor children in Australia affected by the decision
1Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
2This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
3If 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.
4In considering the best interests of the child, the following factors must be considered where relevant:
(a)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);
(b)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;
(c)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;
(d)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;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Respondent concedes that the best interests of the minor children are in favour of the granting of the Bridging visa to their father/ step-father, albeit the Respondent contends that relatively little weight should be placed on this consideration when weighed against the other primary considerations.[66]
[66] Respondent’s SFIC at [50].
As will be explained, the Tribunal comes to a different view and accords this consideration far greater weight than would the Respondent.
The fact that different minds may differ as to the weight that should be given to the best interests of minor children in Australia does not give rise to an error on the part of the Tribunal.[67]
[67] Tuioti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 606, [26] per McKerracher J citing AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451, [58].
In the first instance, the Tribunal notes that both of the children in question are Australian citizens and that this is a materially relevant fact.[68] Secondly, there is no evidence that the Applicant’s drug habits have had any negative or detrimental impact upon either of the children, despite the implications on this point contained in the Respondent’s SFIC.
[68] Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 50 ALR 608, 614.
The interests of each of the two children must be considered separately,[69] although there is much that they share in common in relation to their connections with the Applicant.
[69] VKTT v Minister for Home Affairs [2019] FCA 1018, [22]; Minister for Home Affairs v Stowers [2020] FCA 407, [60].
In relation to his stepson, the evidence makes clear that the Applicant has spent considerable time looking after him and providing financial and emotional support to ZK, as he has to the child’s mother (Mrs ME). He has engaged in sporting activities with the child and the child clearly recognises him as playing a “parental” role, particularly due to the inconsistent and infrequent parental role currently played by ZK’s biological father. Although there was initially some tension with the child’s biological father in relation to the Applicant’s relationship with the stepson, the evidence of his mother is to the effect that she has primary responsibility for the child and prefers to share it with the Applicant rather than with the biological father, and also due to the biological father later having another child of his own his hostility towards the Applicant has reduced or his preoccupations currently do not lie with ZK and the relationship that the Applicant is developing with ZK.
In relation to his biological daughter (CE), the Tribunal again relies upon the evidence of the child’s mother which was to the effect that the Applicant was a caring and supportive father who was anxious to play a primary role in the child’s development and life.
Both children have maintained some degree of contact with the Applicant while he has been in immigration detention. The children are known to each other and interact in a way which is positive and akin to a normal sibling relationship. The somewhat unusual, informal, blended relationship involving the Applicant, his wife, his ex-partner, his stepson and his biological daughter appears to be based on a genuine degree of love and commitment between the parties such that it should be recognised as positively in the interests of each of the children that it should be allowed to continue and develop. The Tribunal notes the position taken by the Australian Psychological Society in its paper ‘Child Wellbeing after Parental Separation’ which was submitted by the Applicant for consideration.[70]
[70] G documents at 298-335.
Whilst there is the hypothetical possibility that the Applicant could maintain contact with the children in other ways, for example through telephone or video chat, given their young age and the current lack of verbal communication by the Applicant’s young daughter, it does not offer a practical solution that would be in the best interests of the children and their development.
In this respect the Tribunal’s finding is very well summarised by the remarks of Deputy President Deutsch and Senior Member Britton in Tauariki:
In our opinion each child would be adversely affected if Mr Tauariki’s visa were to be cancelled. Miss A would be deprived of the opportunity of continuing a relationship with her father with whom she has formed an attachment; Master T would be deprived of the opportunity of getting to know, and forming an attachment with, his father. In our opinion visa cancellation would not be in the best interests of either child.[71]
[71] Tauariki and Minister for Immigration and Citizenship [2013] AATA 475, [83].
The Tribunal accords this consideration significant weight in the Applicant’s favour.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The assessment of the expectations of the Australian community involves consideration of:
11.3 Expectations of the Australian Community
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 a visa. Decision-makers should have due regard to the Government's views in this respect.
The decision of the majority in FYBR[72] leaves no room for the Tribunal other than to conclude that this consideration, prima facie, weighs against the Applicant. The initial decision by Perry J, upheld by the Full Court of the Federal Court of Australia, stated:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[73] (Emphasis added)
[72] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[73] FYBR v Minister for Home Affairs [2019] FCA 500, [42]. Direction no. 79 is in the same terms as Direction no. 65.
Equally, it is not a matter of dispute that the weight to be given to this consideration when balancing all the elements in its decision-making is a matter for the Tribunal alone. As put by Stewart J in the majority in FYBR:
The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.[74] (Emphasis added)
[74] FYBR v Minister for Home Affairs [2019] FCAFC 185, [103].
The Tribunal accords this consideration less weight than is urged for by the Respondent for one primary reason, namely that the original cancellation of the Applicant’s Partner (Provisional) visa was revoked by a delegate of the Minister after consideration of representations from the Applicant. The delegate was aware of the criminal history and drug conviction of the Applicant and took this into account when deciding to revoke the mandatory visa cancellation. In doing so the delegate issued a clear warning to the Applicant that further “criminal offending” might lead to reconsideration of this decision.[75]
[75] G documents at 131; Decision by the delegate of the Minister for Immigration and Border Protection: Decision record dated 9 May 2017.
There was further criminal offending – the PCA offence. This Tribunal, in no way, minimises the impact or seriousness of dangerous driving or drink-driving offences. They are criminal offences and they put people’s lives at risk.[76] However, this offence was in the low range and that is reflected by the nature of the fine and disqualification imposed by the Court.
[76] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347; Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326 per Senior Member Poljak.
To allow the combination of the drug offence, in a review triggered by the PCA offence, to have the potential to allow for the deportation of the Applicant (although that is not an inevitable consequence of any decision of the Tribunal) would seem to disregard the exhortation of the Full Court of the Federal Court in Hands to the effect that:
… The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[77]
[77] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, [3] per Allsop CJ, Markovic and Steward JJ agreeing.
The Tribunal accepts that this consideration weighs against the Applicant but not in any overwhelming or determinative degree.
The Tribunal then turns to the “other considerations”, noting as previously stated that although “other” they are not “lesser”.
OTHER CONSIDERATIONS
Curiously paragraph 12(1) of the Direction provides that the specified considerations apply to “whether to cancel a visa”. This is not a cancellation case, but rather a refusal case. However, as paragraphs 12.1(2), 12.2(1) and 12.4(1) all refer to visa refusals, the Tribunal proceeds on the basis that the whole of paragraph 12 refers, and is applicable, to refusal decisions, despite the obvious inaccuracy in the terms of paragraph 12(1).
The Tribunal accepts that subclauses 12(1)(c) and 12(1)(d) are not relevant to this application.
12 Other considerations – visa applicants
1In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
The elements of the consideration concerning international non-refoulement obligations are:
12.1 International non-refoulement obligations
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
2The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s50I of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
5If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
6In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.
This Tribunal cannot make decisions related to the granting or otherwise of a Protection visa as such, but it must give consideration to the issues raised by way of a non-refoulement claim and also claims of potential harm.
The Respondent’s position is as follows:
Noting that the applicant’s non-refoulement claims before this Tribunal are those advanced in support of his protection visa application, the Minister contends that the Tribunal should place no weight on this consideration in circumstances where the applicant’s “protection visa application has been considered and the claimed harm has been rejected as a basis for a protection visa”: Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [107]-[111]; BNVM v Minister for Immigration and Border Protection [2018] FCA 131 at [52]-[54] (BNVM).[78]
[78] Respondent’s SFIC at [59].
The Applicant’s non-refoulement claims rest upon three separate contentions:
(a)the Applicant suffers from a mental health condition which would not be capable of effective treatment in Nigeria and to send him back there would be to cause him serious harm;
(b)the Applicant would be subject to real physical danger arising from his role in the Ministry of Youth Development and his association with corrupt elements of the Nigerian government; and
(c)the Applicant would be subject to real danger arising from the activities of the Nigerian-led drug importation ring who hold him responsible for their loss of “product” as a result of the confiscation of their drugs by the NSW Police.
As will be explained, the Tribunal does not find any of these claims to be persuasive.
It is clear that the level of mental health care and facilities in Nigeria does not meet what would be regarded as acceptable standards in Australia.[79] However, the Applicant is not currently receiving any treatment for a mental health condition and, indeed, gave evidence to the effect that he has ceased using certain prescribed anti-depressant medications because of their side-effects and he had suffered no adverse consequences as a result.
[79] Socrates Mbamalu, ‘Nigeria has a mental health problem’, Al Jazeera (online), 3 October 2019 < Human Rights Watch, ‘Nigeria: People with mental health conditions chained, abused’, Human Rights Watch (online), 11 November 2019 <>
There is no doubt that the Applicant suffers from depression – it is to be expected that just about every person in his position, in detention (following an extended period of incarceration), would so suffer. The report of forensic psychologist, Ms North, makes it clear that the observed degree of anxiety disorder and depression is related to the Applicant’s present detention and is almost certain to disappear were he to be released into the community. The Tribunal cannot take any of the material before it as a significant diagnosis that the Applicant suffers from an underlying or ongoing mental health condition. Thus, the nature of mental health treatment or facilities in Nigeria is irrelevant.
The Applicant states that he will be “put in jail”[80] were he to return to Nigeria because of the matters outlined above related to his work at the Ministry of Youth Development and the corrupt role played by his uncle as Permanent Secretary. He also asserts that his conviction in Australia would lead to his being sent to jail in Nigeria and that furthermore he would be subject to physical torture.[81]
[80] G documents at 408.
[81] Ibid at 51 and 408.
It is true that under Decree 33 of the National Drug Law Enforcement Agency Act 1990 (Nigeria) such a prosecution could arise. However, information from the Department of Foreign Affairs and Trade indicate that there has been no such prosecution since 2005.[82]
[82] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria (9 March 2018), [5.31].
Since the Applicant left Nigeria in 2008 there have been several changes of government through the Presidencies of Umaru Musa Yar’Adua (2007-2010), Goodluck Jonathan (2010-2015) and Muhammadu Buhari (2015 to date). The Ministry of Youth Development has been abolished and incorporated into a new Ministry of Sports and Youth Development and has had a number of Permanent Secretaries, most recently Olusade Adesola and Gabriel Aduda.[83] It has a new Minister in Sunday Dare.
[83] Busybuddies, ‘Ministry of Sports Gets New Permanent Secretary’, Busybuddies (online), 19 December 2019 < P.M. News, ‘New perm secretary resumes at ministry of youth’, P.M. News (online), 24 December 2019 <>
There is no reason to believe that with these changes of government, changes of Minister and changes of Permanent Secretary that the Applicant would be of the slightest interest to the new regime or indeed that there would be any record of his activities in the now defunct Ministry. The Tribunal cannot but observe that no evidence to support this claim was forthcoming from the Applicant and that there was also no evidence to the effect that his extensive family remaining in Nigeria[84] has suffered any adverse consequences as a result of his former activities in the Ministry of Youth Development.
[84] G documents at 47.
The Tribunal understands that there are concerns expressed on the part of the Applicant regarding the continuing activities of the Nigerian-led gang which was involved in the original matter of his drug conviction. It is true that seizures of heroin resulted from the police activities, including 381.35 grams of pure heroin seized from the courier and 32.70 grams recovered from the Applicant’s home. The street value of these drugs was estimated to be in the order of $418,480 to $488,250.[85]
[85] Supplementary G documents at 68.
It was the Applicant’s evidence that a certain “Najeeb” was the principal in this drug-important ring and that this person had made threats against him and his family because of the loss of the drugs (which the Applicant described in evidence as “product”). If Najeeb is still in Australia it would follow that the Applicant would be safer off in Nigeria. If he is still in Australia the Applicant could protect himself by identifying him and reporting him to the authorities. There is also no evidence of any threats made to any of the Applicant’s family members either in Australia or in Nigeria.
The Tribunal accepts the assessment of this claim by the Minister’s delegate:
The applicant was also unable to articulate why Najeeb would hold him personally responsible for the loss of his “product”. Given the applicant’s vagueness and lack of detail, I find these claims to be lacking in credibility.[86]
[86] G documents at 578.
Hence the Tribunal assigns no weight in favour of the Applicant to this consideration under the Direction.
IMPACT ON FAMILY MEMBERS
The assessment of the impacts on family members involves consideration of:
12.2 Impact on family members
1Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
As noted above, the Applicant’s wife, his ex-partner and the two minor children are all Australian citizens. Each of the wife and the ex-partner testified before the Tribunal that the absence of the Applicant from their lives would have a significant effect – one as part of the married couple and the other as a “friend” and father of her biological child, who provides support to both the mothers, particularly in the care of CE when Ms TC is working her shift as a Registered Nurse. The evidence of both witnesses was forthright and compelling and is accepted by the Tribunal.
Similarly, given the Tribunal’s findings about the best interests of the children, it follows that there would be a major impact on their lives were the Applicant to be removed from Australia. The Respondent, while urging that relatively little weight be given to this consideration, nevertheless agrees that it “may weigh in favour” of the Applicant.[87]
[87] Respondent’s SFIC at [66].
DISCUSSION
The Applicant has pleaded for a “second chance”.[88] He asserts that he is genuinely remorseful for his actions, that he is committed to being a good husband/ partner and a good father to his two children, that he has given up all criminal associations and that he has remained abstinent from drugs since his incarceration.
[88] G documents at 409.
The Tribunal is inclined to accept his assurances in this regard and is conscious of the fact that the Applicant’s further offending (which triggered the reconsideration of his visa status) was not a manifestation of any continued use or abuse of illicit drugs.
The concept of a “second chance” is important. As Deputy President McCabe observed in Do and Minister for Immigration and Border Protection (Migration):
… As I begin my deliberations, I assume the Australian community would be fair-minded and mature … after all: we are a nation built on second chances. The community would certainly not be vengeful.[89]
[89] [2016] AATA 390, [23].
The Direction itself is predicated on there being the possibility of a second chance. Unless that were the case there would be no reason for the Act to provide for “another reason” to be considered in relation to visa cancellations, refusals and revocations.
In weighing up the various considerations and assessing them as a whole, the Tribunal has found that the protection of the Australian community weighs against the Applicant, but only to a minimal degree and that the expectations of the community are also adverse to him, but again, not overwhelmingly so.
It has found that there are no non-refoulement obligations owed and that the Applicant’s claims of fears for his safety are not well founded and certainly not demonstrated in the limited evidence before the Tribunal.
It has found that the best interests of the minor children and the potential impact on family members if the Applicant were to be removed both weigh heavily in favour of setting aside the delegate’s decision to refuse to grant a Bridging visa.
The calculus of these considerations thus comes down significantly in favour of the Applicant.
Not that this is the end of the matter as the Bridging visa would be just that – bridging until such time as the Applicant’s Protection visa application is conclusively determined. However, in the interim the Applicant should not have his Bridging visa application refused.
DECISION
The decision under review is set aside and the matter is remitted to the Respondent for reconsideration in accordance with a direction that the Applicant’s application for a Bridging C (Class WC) visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..............................
Associate
Dated: 3 June 2020
Date(s) of hearing: 13 and 14 May 2020 Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers Solicitors for the Respondent: Mr M Palfrey, HWL Ebsworth Lawyers
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