NWEKE and Minister for Immigration and Citizenship
[2011] AATA 484
•12 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 484
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1635
GENERAL ADMINISTRATIVE DIVISION ) Re Dirichukwu Patrick NWEKE Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date12 July 2011
PlaceSydney
Decision The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Nweke’s favour so that his visa is not cancelled.
......................[sgd]......................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child – non-refoulement obligations - other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review set aside
RELEVANT ACT
Migration Act 1958 (Cth): s 501
CITATIONS
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; (2001) 33 AAR 163; [2001] FCA 568
Re Lam and Minister for Immigration and Multicultural Affairs (1999) 28 AAR 431; [1999] AATA 56
OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
12 July 2011 Mr R P Handley, Deputy President 1.Mr Nweke has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
2.Mr Nweke was born in Nigeria in August 1974 and is a Nigerian citizen. He first arrived in Australia on a three month business visa on 18 September 2000, at the age of 26. On 26 October 2000, he applied for a protection visa which was refused on 28 February 2001. However, on 8 February 2001 he also applied for spouse visa which was granted on 29 January 2002. On 11 April 2003, Mr Nweke was granted a permanent Class BS Subclass 801 Spouse visa which is the visa that is the subject of the cancellation in these proceedings.
3.Mr Nweke has three children born in Australia – all boys. The two oldest boys, C and D, who are aged nine and eight respectively, were born to Mr Nweke’s wife, Ms G, from whom he separated in 2003. Ms G lives with the two boys in Perth. Both Mr Nweke and Ms G say they have now reconciled and plan to resume their marital relationship if Mr Nweke is released into the community. Mr Nweke also has another son, J, aged six, from another relationship. J lives with his mother in Sydney.
4.On 31 March 2005, Mr Nweke was arrested and, on 9 March 2007, subsequently convicted of the offence of importing a commercial quantity of a prohibited narcotic aiding and abetting the importation of less than a trafficable quantity of cocaine into Australia on 10 November 2003. On 5 November 2007, in the District Court of NSW, Judge Ainslie-Wallace sentenced Mr Nweke to 10 years imprisonment commencing on 31 March 2005 with a non-parole period of six and a half years ending on 30 September 2011.
5.Mr Nweke also has the following driving related convictions:
13 October 2003:
·special category driver, drive with special range prescribed concentration of alcohol – fined $300 and disqualified from driving for 6 months
·unaccompanied learner - fined $300 and disqualified from driving for 6 months
·failure to display ‘L’ plates on car as required – fined $100
27 May 2004:
·driving when licence cancelled – 9 month good behaviour bond
29 September 2004:
·not give particulars to other driver, and not give way – on each charge fined $300
6.By letter dated 9 February 2011, the Department of Immigration and Citizenship (the Department) notified Mr Nweke of its intention to consider cancellation of his visa and invited him to respond. On 17 February 2011, Mr Nweke completed and returned the Department’s ‘Personal Details Form’. He was interviewed by telephone by a departmental officer on 5 April 2011.
7.On 21 April 2011, a delegate of the Minister decided to cancel Mr Nweke’s visa and he was notified of this by letter dated 29 April 2011. On 4 May 2011, Mr Nweke applied to the Tribunal for a review of the decision.
RELEVANT LAW AND POLICY
8. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
9. Mr Nweke has been sentenced to a term of imprisonment of 10 years, with a non-parole period of six years and six months for offences connected with the importation of cocaine into Australia, detailed above. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Nweke’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
10. The ‘primary’ considerations in Direction No 41 are set out in paragraph 10(1):
10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
(Original emphasis.)
11. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
Primary Considerations
12. The ‘primary’ considerations relevant in Mr Nweke’s case are the protection of the Australian community, whether he was a minor when he began living in Australia, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity and relevant international obligations including, in particular, the best interests of his children.
the protection of the australian community
13. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.
The seriousness of the conduct
14.With regard to the seriousness of Mr Nweke’s conduct, the Tribunal notes that the “importation or trafficking of trafficable or commercial quantities of illicit drugs” is among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41.
15.Paragraph 10.1.1(3) of Direction No 41 states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
16.In sentencing Mr Nweke in the District Court of NSW on 9 March 2007, Judge Ainslie-Wallace noted that Mr Nweke had been found guilty of aiding and abetting the importation of 1.873 kgs of cocaine from New Zealand concealed in the back and front covers of a number of hardcover children’s books. Mr Nweke deposited $450 into the bank account of the woman who imported the books, flew to Auckland to meet with her, booking into the same hotel and paying for her accommodation and expenses. The Crown also contended that Mr Nweke received the children’s books and handed them to the woman to take back to Australia knowing that they contained drugs. Judge Ainslie-Wallace found that Mr Nweke’s role “was considerably more complex” than that of the importer (who suffered from a significant mental illness) and his position was one “of some control and authority”. The Judge was sceptical about a psychologist’s report stating that Mr Nweke suffered from Post-Traumatic Stress Disorder and a ‘Major Depressive Illness’ because of inconsistencies in his accounts as to his and his family’s treatment in Nigeria.
17.Judge Ainslie-Wallace found while Mr Nweke was sorry that he had been a bad role model for his children, there was “no acceptance of culpability for this offence and no expression of remorse nor contrition”. She said it was difficult to comment on his prospects of rehabilitation because of his maintaining his innocence: “It is impossible … to make any reasoned assessment of his prospects of rehabilitation.”
18.In cross-examination at the hearing, Mr Nweke was asked about his involvement in the offence. He said that he had arranged to deposit money into the importer’s account and paid for her accommodation and expenses in Auckland. Further, he acknowledged having handled the drugs which he got from his “boss”. He said he committed the offence in 2003 after separating from his wife in Perth and returning to Sydney. He was stressed after the separation and then heard that his younger sister in Nigeria had breast cancer and needed money to pay for surgery.
19.Mr Nweke agreed that he had denied responsibility at the time of his trial but said, on being imprisoned, he had accepted responsibility and especially on living with people who have drug problems, as a result of which he has felt guilty and ashamed of his previous conduct. Also, his acceptance of Christianity has helped him accept responsibility for his actions. Mr Nweke said he had appealed against his conviction on legal advice but decided to abandon his appeal well before the hearing date. He said his other convictions for driving related offences occurred while he was working as a security officer in Sydney.
20.The Department of Corrective Services records for Mr Nweke list four misconduct charges while he has been in prison, which are as follows: 30 May 2006, ‘possess create prohibited goods’; 20 February 2007, ‘possess create prohibited goods’; 11 February 2009, ‘fail to comply with correctional centre routine’; 19 February 2009, ‘intimidation’. Mr Nweke was punished with ‘seven days off buy ups’ for the incident on 20 February 2007 and a reprimand and caution for each of the other incidents.
21.Mr Nweke explained that the first incident in 2006 arose out of his using a training belt in his cell – he was not aware that he was not allowed to have such a belt in his cell. The second incident in 2007 arose when he was moved from one cell to another and was not aware that he had to check his new cell for unauthorised objects when moving into it. When his cell was searched at a later time, a sharp object was found in his mattress. He explained what had happened to the area manager who, on hearing from other officers that he is not a violent person, only reprimanded him. The third incident, on 11 February 2009, occurred when he was moved from Long Bay Correctional Centre (CC) to Silverwater CC. He asked for a non-smoker’s cell. One was not available immediately and he was trying to explain to the officer that smoking affected his health. His English was not very good at the time and the officer misunderstood him and charged him with intimidation. When he spoke with the area manager about what had happened, the manager realised there was a communication problem and only reprimanded him. The fourth incident, on 19 February 2009, arose out of a new inmate trying to talk to him during muster. He told the inmate to talk to him afterwards. Mr Nweke was charged with talking. Again, he said he explained what had happened to the area manager who let him off with a reprimand.
22.With regard to mitigating factors, an Immigration Report prepared for the Department by the Probation and Parole Service, Silverwater Parole Unit, dated 2 November 2010 (the Immigration Report), notes that Mr Nweke “has an active alert due to his status of Low vision. He also is allergic to chloroquin.” Judge Ainslie-Wallace referred Mr Nweke having deteriorating vision in one eye following an accident in 2000. A medical certificate from Dr Bruce McGarity, “Visiting Senior Consultant Specialist” for Justice Health, dated 2 June 2011, states that Mr Nweke is a carrier of the hepatitis B virus and there is a chance of his developing cirrhosis of the liver and liver cancer in the future.
The risk that the conduct may be repeated
23.With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Nweke’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including bail and parole orders.
24.The Immigration Report states that “Mr Nweke has been subject to five urinalysis tests since June 2009 all of which have returned a negative result for illicit or non-prescribed substances”. The Report states Mr Nweke “is currently accessing an education course Certificate I in Information Technology. He has completed a Senior First Aid certificate (September 2009)”. With regard to his employment in prison, the Report states:
The offender is currently employed in the CSI kitchen. Contact with the CC overseer was made and he described the offender’s work performance as “satisfactory. Mr Nweke does the minimum required of him. However, he is not considered problematic or disruptive.”
25.Mr Nweke told me that he has tried to better himself while he has been in prison. He has done all the available courses in prison to enable him to work as a fitness instructor/personal trainer, about which he is passionate. This includes courses in physical education and nutrition. He has one further course to undertake – a Certificate III in Fitness - which he has not been allowed to undertake while in prison and for which he will need to attend TAFE. Once he has completed and passed this course, he will be qualified to work as a fitness instructor/personal trainer. He already has his Occupational Health and Safety ‘white card’. Mr Nweke said the fitness industry appears to be booming in Western Australia. The Tribunal was provided with copies of Mr Nweke’s TAFE certificates for ‘Apply First Aid’ and ‘Nutrition’. In the past, he has worked as a security officer, as a construction worker and has undertaken factory work.
26.Mr Nweke said he will not reoffend. He has never used drugs but has now lived with people in prison who have drug problems and now understands the bigger picture, the effect drugs have on people, and the harm they suffer as a result. He feels guilty and ashamed at what he did. He said that he invites other prisoners to go to the gym with him for fitness training and also to join him in Bible Study with Father Peter Carroll.
27.Mr Nweke said he plans to live with his wife and children in Perth. He wants to be with them and feels guilty and ashamed for not being around to support them for the past six years, and for the pain and suffering he has caused. In his statement dated 7 May 2011, he said he wants to be a good father upon his release from prison. His wife and children have already suffered the financial and psychological consequences of his being in prison and, if he is deported, this will further complicate their lives and cause them further pain. In an undated letter to the Department, apparently in response to the notice of intention to consider cancellation of his visa dated 9 February 2011, Mr Nweke also said he had come to realise how many people he had hurt and how many people had paid a huge price as a result of his stupidity. He said he has come to embrace an enhanced Christianity in prison that “has helped me gain insight into a wider opinionated views [sic] and acceptance of all my wrongdoing. I do accept full responsibility for my action. I am deeply deeply sorry.”
28.The Tribunal was provided with a letter dated 23 May 2011 from Captain Andrew Carter who said he has known Mr Nweke for over a year in his capacity as chaplain at Silverwater Correctional Centre. Captain Carter said:
Patrick has always been courteous towards me and I have noticed the same with regard to Staff around me. Patrick has gained and kept employment within the Centre. He is in a working wing where those who are trusted to carry out their duties correctly and efficiently are housed.
29.The Tribunal was also provided with a statement from Father Peter Carroll dated 28 June 2011. Father Carroll is a Catholic Priest working as a Chaplain at Long Bay and Silverwater Correctional Centres:
Dirichukwu Patrick Nweke is very well known to me. I have been visiting Patrick for the duration of his imprisonment; regularly providing religious and pastoral support since 2006. Moreover, Patrick has taken every opportunity to participate in all programs offered by Chaplaincy.
Patrick has maintained strong connections with his children, regularly telephoning his children in Western Australia and receiving regular visits from his son in Sydney. Patrick has always been concerned to be employed whilst in prison and is a very committed and industrious worker, relating easily with the overseers and his workers. Patrick has remained determinedly committed and focused on maintaining a healthy lifestyle, which I have no doubt has been the firm foundation that has enabled him to deal with the vagaries the prison system imposes on both his best intentions and his determined efforts to pursue academic and self development programs.
To no small degree Patrick’s commitment to his ongoing rehabilitation has been depthed with the realization of the far reaching impact of his being in prison. Patrick’s imprisonment has brought home to him the consequences of offending behaviour and been a motivating force to him in pursuing opportunities for personal and academic development. Patrick is sincerely determined to continue building on the insights of regret and remorse that he has realized from his imprisonment.
30.Father Carroll also gave evidence at the hearing. I found his evidence convincing. He said Mr Nweke is industrious, energetic and diligent and well respected by his associates. He has very good prospects for rehabilitation and not reoffending. Mr Nweke is very enthusiastic about involvement in sport in prison and has worked with other men in developing their fitness. He has a very positive relationship with other inmates and is a person of good influence. He has a strong attitude to faith and his principles. Father Carroll said he has never heard any bad comments made about Mr Nweke by anyone.
31.Mr Nweke’s wife, Ms G, also said he has made big changes and they now have a very strong relationship based on openness and honesty.
32.I am satisfied from the above evidence that Mr Nweke has excellent prospects for a full rehabilitation and of not reoffending. He has a committed a very serious offence and, consequently, has received a long prison sentence. He has no previous history of such offending although I note the driving related offences listed above. I find that Mr Nweke has made significant efforts towards his rehabilitation while in prison in terms of his personal development and education. I accept that he now has a better understanding of the effect of his offending both on his family and the wider community and he has expressed appropriate remorse. While he does not yet have employment arranged, he wishes to resume living with his wife and children in Perth and, once he has completed a further TAFE certificate, to embark on a career as a fitness instructor/personal trainer. Father Carroll’s evidence indicates that Mr Nweke is determined to turn his life around and both provide for and support his family. In my view, the risk Mr Nweke presents to the Australian community is very low.
Whether he was a minor when he began living in Australia
33.Mr Nweke was aged 26 when he first began living in Australia. In Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194, at 396, Rares J said:
In my opinion, a decision-maker was entitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process. A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b). No direction is provided in the balance of Direction 41 as to the weight that should be given to the fact that the visa holder was not a minor under cl 10(1)(b).
34.Mr Nweke’s evidence indicates that notwithstanding he was an adult when he first began living in Australia, he was relatively naïve. While this primary consideration favours cancellation of Mr Nweke’s visa, in my view, it should not be accorded any significant weight in the light of two other primary considerations.
length of time ordinarily resident
35.The third primary consideration relevant in Mr Nweke’s case - the length of times he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”. Mr Nweke had been living in Australia for three years when he committed his first offence. While the reason Mr Nweke gave for committing the importation offence – the need to send money to his younger sister to pay for breast cancer surgery at a time when he was already stressed following the separation from his wife – does not in any way excuse his conduct, it does at least suggest that he did not embark on criminal misconduct as a considered course. Mr Nweke now recognises the “stupidity” of his actions and, as I have said above, he was naïve at that time. In my view, this third primary consideration should be treated as a neutral consideration.
best interests of the children
36.Direction No 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”. In Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan), the Full Federal Court said, at 142:
Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
37.Mr Turner, for Mr Nweke, also referred the Tribunal to the decision of the then President of the Tribunal, Justice Mathews, in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [3], where her Honour emphasised that the interests of children are always to be treated as a primary consideration. Mr Turner said the facts of that case, involving the possession of a substantial quantity of heroin, were not dissimilar to those of the present case.
38.The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
39.Mr Nweke has three children in Australia, all of whom were born here and are Australian citizens. I am satisfied from Mr Nweke’s evidence that, notwithstanding that he has been in prison for more than six years, he is very attached to his children and determined to provide them with the love and support they need. Mr Nweke’s stated intention, if he is released into the community, is to return to Perth to live with his wife and two older boys, who are aged nine and eight. He looks forward to taking them to school, playing sport with them and generally supporting them. His wife, Ms G, has provided a statement dated 10 May 2011 and flew from Perth to Sydney in order to give evidence in person at the hearing. Ms G confirmed Mr Nweke’s evidence that they have reconciled and intend to resume their marital relationship if Mr Nweke is released into the community. Ms G noted that even after their separation in 2003, they maintained a close relationship for the sake of their children and that Mr Nweke would make regular visits to Perth from Sydney – every two or three months – to visit the children, as well as maintaining contact with them through frequent phone calls.
40.Ms G said that since Mr Nweke has been in prison, he has continued to maintain contact by phone, speaking to their children every day. Mr Nweke said they tell him about what they are doing at school and their assignments and, if they have been naughty, he speaks to them about this. They ask him when he is coming home and tell him they want him to take them fishing and to play soccer with them. Ms G has not told the boys their father is in prison and they think he is just away working in Sydney so the counsellor and psychologist, Mrs Jay Anderson, who undertook a brief assessment of the boys, was not able to ask them for their reaction should their father have to leave Australia.
41.Mrs Anderson provided a report dated 26 June 2011 and gave evidence by conference telephone at the hearing. Mrs Anderson met first with Ms G before meeting with each child separately for 50 minutes. She concluded that despite the lack of physical contact, the boys have a strong relationship with their father, enjoy talking with him on the phone and consider him a part of their family. They indicated that they would be sad and disappointed if their father does not come to live with them.
42.Ms G told the Tribunal she was born in South Africa and has been in Australia for 23 years. She said that if Mr Nweke has to return to Nigeria, she will not go with him. She said Nigeria is a dangerous country with a high level of serious crime. She would not risk taking their sons there. If Mr Nweke returns to Nigeria, that will be an end to their relationship and “our children would never be able to see their father again”.
43.Mr Nweke also has another son, J, aged six, from his relationship in Sydney with Ms L after he separated from his wife. Ms L provided a statement dated 5 May 2011. She said J was only five months old when Mr Nweke was detained. However, J has regularly visited his father in prison since that time. This was confirmed in the Immigration Report which stated that Ms L and J have visited Mr Nweke weekly throughout his period of incarceration. Ms L also said Mr Nweke calls several times a day to speak with J. Ms L said she can see that J thinks about his father a lot and is angry because of the limited time they have together. He wants his father to be there to do things with him like other fathers.
44.Mr Nweke said he has a good relationship with J and he and Ms L are committed to J’s future. If he is released into the community, Mr Nweke will pay child support for J and will be there for him when needed. He intends to maintain contact with J by phone and J can come and stay with them in Perth during the school holidays.
45.I am satisfied from the above evidence that Mr Nweke has a good relationship with his children and is committed to their future and to supporting them. I am also satisfied from the evidence with regard to the children that they would be adversely affected by his having to return to Nigeria. Thus, in my view, this primary consideration strongly favours Mr Nweke’s visa not being cancelled.
Other International Obligations
46.Mr Turner submitted that there is evidence that Mr Nweke will be subjected to degrading treatment if he is returned to Nigeria. Therefore, to return him there would be in breach of Australia’s implicit non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR). The Tribunal has been provided with a letter from Mr Nweke’s sister in Nigeria. She states that at a meeting of Mr Nweke’s kindred in his village in Nigeria on 28 December 2010, it was resolved that “in accordance with the strict native law and custom”, Mr Nweke be “ostracized and ex-communicated” as a result of his involvement in criminal offences in Australia:
The implication of the said resolution of the Umuakpagu kindred ostracizing Mr Dilichukwu Patrick Nweke is that he has been banished from the kindred whose custom abhors and prohibits the shameful and condemnable act of commission of crime abroad by its members. It means that he has been excommunicated from his people and banned from having any relationship or dealing of any kind with his people.
47.Mr Temby, for the Minister, noted that Mr Nweke applied for a protection visa on 26 October 2000, which was refused on 28 February 2001. With regard to Mr Nweke’s letter, Mr Temby submitted that this does not constitute sufficient evidence to establish degrading treatment.
48.I agree with Mr Temby that Ms Nweke’s evidence does not of itself establish potential degrading treatment which would contravene Australia’s implicit non-refoulement obligations. In my view, Mr Nweke’s being “ostracized and ex-communicated” by his family in Nigeria is a relevant matter which can be appropriately considered below as an ‘other consideration’.
OTHER CONSIDERATIONS
49.As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Nweke’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with Nigeria, the hardship that may be experienced by both Mr Nweke and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
50.As noted above, Mr Nweke is married to an Australian citizen and has three children in Australia. Mr Nweke and his wife, Ms G separated in 2003 but state they have been reconciled for the past two years and have planned for the resumption of their cohabitation with their two children if Mr Nweke is released into the community. Ms G states that she has found it very difficult raising their two children on her own and at one stage was hospitalised for a week as a result of suffering from severe depression. For the reasons stated above, Ms G states that she would not accompany Mr Nweke to Nigeria if he has to return there and this would end their relationship. Ms G’s sister also provided a statement, dated 10 May 2011, in which she refers both to Mr Nweke being a good father and husband and to the effect that the “pressure and strain” of raising the two boys on her own has had on Ms G “emotionally, physically and medically”.
51.Mr Nweke has also maintained contact with his former de facto, Ms L, in Sydney with whom he has a son, J. As noted above, in a statement dated 5 May 2011, Ms L speaks of the need for her son to maintain contact with his father in Australia.
52.Mr Nweke is now aged 36. The letter from Dr McGarity states that Mr Nweke is a carrier of the hepatitis B virus and that there is a small risk of cirrhosis of the liver and of liver cancer developing in the future. Dr McGarity said Mr Nweke requires blood tests and ultrasound examinations every six months and if cirrhosis or liver cancer developed, “treatment options would be much better in Australia than Nigeria”. As noted by Judge Ainslie-Wallace, Mr Nweke also suffered damage to an eye in an injury in 2000 for which he may seek treatment.
53.With regard to Mr Nweke’s ties with Nigeria, his mother (aged 70) and sister continue to live in Nigeria but, as noted above, he has been “ostracized and ex-communicated” by his local community. I assume, however, that this would not prevent him living and working elsewhere in Nigeria, but it would be without family support. I accept that if Mr Nweke has to return to Nigeria this would lead to him experiencing significant hardship by reason of his separation from his family and, in particular, his children in Australia.
54.Mr Nweke has taken steps to further his education while in prison and has completed all but one course required to enable him to qualify as a fitness instructor/personal trainer which is the career he wishes to pursue on his release from prison. I note that he has also embraced Christianity and, according to Father Carroll, is making a positive contribution to his fellow inmates in prison.
55.Finally, I note that Mr Nweke has not been formally advised in the past that he might be liable to deportation if he commits any further misconduct.
Conclusion
56.Weighing up the relevant ‘primary considerations’, I am satisfied Mr Nweke’s release into the Australian community poses very little risk. As stated above, I am satisfied from the evidence that Mr Nweke has excellent prospects for a full rehabilitation and of not reoffending.
57.The second and third primary considerations are not, in my view, of significance in this case. While the fact that he was an adult at the time he began living in Australia favours cancellation of Mr Nweke’s visa, this (second) primary consideration should not be accorded any significant weight. Moreover, as explained above, the third primary consideration, the length of time he was ordinarily resident in Australia before engaging in criminal activity, should be treated as a neutral consideration.
58.In addition to the protection of the Australian community, the other important primary consideration is the best interests of Mr Nweke’s children which, in my view, for the reasons given above, strongly favour Mr Nweke’s visa not being cancelled.
59.With regard to the ‘other considerations’, I accept that Mr Nweke’s return to Nigeria would cause hardship to both him and his family in Australia. As part of his rehabilitation, he has undertaken further study to equip himself as a fitness instructor/personal trainer on release into the Australian community. His being “ostracized and ex-communicated” by his local community in Nigeria would make it difficult to re-establish himself there. He also has potential health problems which can be better addressed in Australia. Lastly, I have noted that Mr Nweke has not previously received a formal warning from the Department.
60.Having had regard to both the primary and other considerations, my overall conclusion, with particular regard to the very low risk posed by Mr Nweke to the Australian community and the best interests of his children, is that the discretion in s 501(2) of the Act should be exercised in Mr Nweke’s favour and that his visa should not be cancelled.
Decision
61.The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Act should be exercised in Mr Nweke’s favour so that his visa is not cancelled.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed......[sgd].........................................................................
AssociateDates of Hearing 4 July 2011
Date of Decision 12 July 2011
Representative for the Applicant Turner Coulson Immigration Lawyers
Representative for the Respondent Minter Ellison
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