NXLT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 925

NXLT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 925 (29 April 2024)
Division:                   GENERAL DIVISION
File Number:          2024/0787
Re:NXLT  [1]
[1] To ensure the Applicant’s anonymity, taking into account the submissions made on his behalf which were not accepted by the Tribunal, this decision has been anonymised.
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:29 April 2024
Place:Sydney

The decision under review is affirmed
.................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – strength, nature, duration of ties to Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
DLJ18 v Minister for Home Affairs (2019) 273 FCR 66
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TJHG and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 812
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
29 April 2024
Introduction

The Applicant is a 41 year old citizen of Nigeria who has resided in Australia since 29 December 2013 when he arrived to live with his wife whom he had married in Malaysia in 2011, after meeting on-line.
His subclass 100 Spouse (permanent) visa was mandatorily cancelled on 21 January 2021 by a delegate of the Minister pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 5 February 2024, the Minister’s delegate refused to revoke the mandatory cancellation pursuant to section 501CA(4). The Applicant seeks to have that decision set aside.
The issue
The parties accept that the Applicant does not pass the character test because he has a substantial criminal record, that is, he has been sentenced to a term of imprisonment of 12 months or more.[2] His sole criminal conviction in Australia was for the Commonwealth offence Import/export commercial quantity of border controlled drugs/plants. He was found to have imported 3.947 kilograms of pure methamphetamine. On 3 April 2018, he was convicted in the District Court of New South Wales and sentenced to 12 years and seven months’ imprisonment, with a non-parole period of eight years and two months.
[2] See subsections 501(6) and (7) of the Act.
The issue before the Tribunal is whether there is another reason why the cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa.
Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[3]
[3] Paragraph 7(1)-(2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].
I will address each of the primary and other considerations that arise for consideration in this case.
Primary considerations
Protection of the Australian community
When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been law abiding, will respect important institutions, and not cause or threaten harm to individuals or the Australian community.[4] In this case, the Applicant is seeking to remain in Australia.
[4] Direction 99, paragraph 8.1(1).
There are two factors in relation to the protection of the Australian community:
(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.
The nature and seriousness of the non-citizen’s conduct to date
The Applicant pleaded guilty after negotiations occurred and a plea was entered after the date the matter was set for trial. He was entitled to a discount of no more than 10% on his sentence. His co-accused pleaded guilty to one count of aiding and abetting the Applicant in the commission of that offence.
The Applicant’s term of imprisonment commenced on 4 December 2015, the date he was arrested. The total term was to expire on 3 June 2028. He was released into immigration detention on 3 February 2024, the first day he was eligible for parole.
The following is taken from the remarks of the sentencing judge on 3 April 2018 which were based on the Agreed Fact Sheet which was not in evidence.
Neither offender gave evidence on sentence. The contents of the letters and what the Applicant told various report writers was not able to be tested.
The drug was to be imported from Hong Kong. The gross weight was nearly five kilograms, consisting of 3.947 kilograms of pure methamphetamine. The commercial quantity for this drug is 750 grams. The amount of the imported pure drug was more than five times the commercial quantity threshold.
The methamphetamine was concealed in the door cavities of refrigerators that were shipped to Australia on consignment. Both offenders used falsely subscribed mobile telephones to communicate with each other and with others in order to facilitate the importation.
The offenders were directly involved between September and December 2015. Each was extensively involved in communicating with each other and with others to arrange potential addresses and redirection addresses for the imported drugs. It was probable that others were involved in other parts of the importation process prior to September 2015.
The co-offenders arranged and passed on details of passport and other identification information in order that fake identification be prepared for the purpose of collecting the imported good.
Both offenders utilised telephone services and email addresses activated and registered in false names associated with false identifications created with their cooperation. The false telephone numbers and addresses were used by the primary offender, the Applicant, to communicate with parties in China in order to arrange the ultimate physical importation of the drugs.
The Applicant discussed the impending arrival of the shipment before it left China in November 2015 with his co-offender and others outside Australia. He referred to having access to ‘errand boys’ indicating that he had control and direction of other people who were going to collect the substances on his behalf. He had contact with a person in Malaysia where confirmation occurred about the authorisation of the shipment and ultimately, he paid a freight forwarding company once the goods had arrived in Australia. Between the goods leaving China and arriving in Australia, there was a great deal of activity by both offenders arranging shipment details, delivery details and the use of the false identity documents for the identification of the consignment. Both offenders discussed the steps to be taken in arranging the redirection and collection of the shipment and the process for paying the outstanding fees.
The Australian Federal Police inspected the shipment when it arrived in Australia. The approximate wholesale price for one kilogram of methamphetamine of the purity of the shipment was about $200,000 and the wholesale value of the shipment was approximately $983,000. The street value was nearly $3,000,000 which is an indication of the potential harm to the community of this quantity of drugs.
After the drugs were delivered to Australia, the Applicant was forwarded via email a receipt for payment of duties. In return, he requested delivery of the consignment to an address that his co-offender had obtained.
The Applicant’s premises were searched. Mobile telephones and computers containing details of addresses and consignment details and flights for the offender to depart to Nigeria on 7 December 2015 were located. The documents and items found confirmed the Applicant’s involvement although he told police that some of the documents were owned by other people. He made no significant admissions to involvement in the offence or even having knowledge of his co-offender.
There was no evidence that either offender was involved in further distribution processes into the community.
The structure behind the importation organisation was opaque. Each offender in conversations with the other appeared to know the quantity of the drug imported. Both offenders had constructive knowledge of the exact drug to be imported because their knowledge was at such a high degree or recklessness as to the exact drug being imported.
The Applicant was intricately involved and a vital part of the importation process. He was a principal in Australia but there is no evidence that he was the only principal in Australia. How payment was to be arranged for the drugs in China was not known. The Applicant played a significant role in arranging the importation. He created or arranged the completion of forms and documentation concerning the consignment and communicated with people overseas about it. He made a small payment. There is no evidence of anybody else doing so.
The level and degree of organisation was significant.
Both offenders admitted that they were involved for financial gain but there was no evidence directly as to how much they expected that to be. The conversations each offender had concerning the importation and the possible reward they expected from it indicated that they expected significant financial gain to accrue to them. The Applicant referred to doing this one and then travelling home for good at paragraph 17 of the facts. In a conversation, another male asked him to come to Australia and do the ‘thing’ at least three times and he would have so much money he could go home to Nigeria and build a bungalow.
The involvement of each of the offenders was ongoing and significant and required each of them to perform many different tasks on an ongoing basis for the purpose of importing the quantity of drug, or substantially assisting in doing so.
Returning to the other evidence and arguments before the Tribunal, it was suggested that the Applicant’s co-offender was the principal. On 18 March 2021, the Applicant’s wife sent the Department a handwritten document from his co-offender dated 4 January 2016, who claimed that the Applicant had no involvement in the offence and should be acquitted of all charges.
That proposition cannot stand. The sentencing judge found that the co-offender had a supportive role to the Applicant. The co-offender pleaded guilty to and was sentenced for the offence aiding and abetting the Applicant in the commission of that offence. The first time the 2016 document arises in the evidence is 18 March 2021. I do not accept that it came into existence in 2016 or that it was available for the sentencing hearing. It appears to have been prepared for the purposes of having the mandatory cancellation decision revoked. That conclusion is not based solely on that document but arises in the context of my very serious concern about the Applicant’s credibility which is considered later in this decision.
The Applicant concedes that drug importation can be viewed seriously and that his offence was serious. The Respondent contended that it was very serious.
The sentencing judge’s remarks about the nature of the offence, including the harm it would cause, the Applicant’s role in it, and consequentially the sentence imposed, reflect the seriousness of the offence, particularly when it was a first offence.
Comparison of the Applicant’s sentence with the definition of substantial criminal record that is, if the person has been sentenced to a term of imprisonment of 12 months or more (section 501((7) of the Act) also reflects the seriousness of the offence.
I find that it was a very serious offence. In doing so, I observe that paragraphs 8.1.1(1)(a) and (b) of Direction 99 are not exclusive. Both provide: ‘without limiting the range of conduct that may be considered’ very serious and serious, respectively, and then set out certain types of conduct.
The risk to the Australian community should the Applicant commit further offences
Paragraph 8.1.2(1) of Direction 99 provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
The Respondent contended that given the substantial harm that the Applicant will cause if he re-offends, even a low risk is unacceptable.
The harm to individuals and the Australian community should the Applicant reoffend is conveniently summarised in Part A of the New South Wales Report of the Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants was in evidence.[5] It is very detailed. It is sufficient to set out what Associate Professor Rebecca McKetin, National Drug and Alcohol Research Centre, UNSW, told the inquiry:
So regardless of how you take methamphetamine, if you take enough of it you will see dependence. You will see mental health harms, including elevated risk of psychosis, elevated risk of violence of suicidality and depression. If you use the drug enough, regardless of the route of administration, you’ll see elevated risk of cardiovascular problems and stroke, and you’ll see, if you inject it, specifically elevated risk of blood-borne virus transmission.
[5] The Applicant’s legal representative did not take issue with the fact that only part of the report was put before the Tribunal and no formal reference details for the report were provided.
The evidence of the Applicant’s best friend in Australia (BA) is relevant to the Applicant’s knowledge of the harm drugs could do. I find that she is a reliable witness. She lost contact with the Applicant in about March 2015 for some years until he reached out to inform her about the drug importation charges:
I could sense that [the Applicant] was ashamed, embarrassed and took full responsibility for his actions as he was very upset at himself. He also apologised for his long silence but stated he did not know how to tell me, as he knew my strong views on drugs and what I had been through with my own (relative).
The Applicant’s evidence was not to his credit. He said that she did not go into detail. He knew one of her (relatives) was using drugs. He was not too deep in that situation and did not know the drug. He also claimed that in 2015 he did not know that cannabis was illegal, which I do not accept.
The Respondent contended that the Tribunal should not be satisfied that the Applicant’s risk of reoffending has sufficiently ameliorated for the following reasons:
(a)The sentencing judge’s finding that the Applicant’s offending was not connected with alcohol abuse but was associated with anti-social associates and criminal tendencies:
(b)There is no evidence that the Applicant’s financial situation has improved since he was arrested. The same financial circumstances that spurred him to offend are still present.
(c)The weight to be given to the Applicant’s relationship with his wife as a deterrent or protective factor against further offending is low. He was married to her and was living with her. On 26 May 2023 she said that he had threatened her with divorce.
(d)The Applicant had argued with prison staff and appears to have used cannabis regularly while in detention which shows disregard for Australian law, which increases his likelihood of re-offending.
I accept the first contention. I do not understand that it is contested.
I accept that the Applicant’s financial situation has not improved since he was arrested. If released into the community he will have to find work. How difficult that may be given his criminal record is not clear, despite the many qualifications he completed while in prison and his previous qualifications in business and economics.
The relationship of the Applicant and his wife is central to the outcome in this case. It is considered in detail below.
I reject the fourth contention as put because I was referred to only two reports of arguing with prison staff/kicking a door while he was in prison or immigration detention. That incident was a reaction to being called to an audio visual link for a psychologist appointment and being told to wait for 15 minutes. The length of time he has been in those facilities, the record of his conduct, the many courses he has completed and his voluntary work with assistance dogs for veterans and as a mentor of young offenders, supports the conclusion that he behaved well while he was in prison and since he has been in immigration detention. I was not referred to any adverse incidents since he has been in immigration detention. That he was released from prison at the end of his non-parole period reinforces the conclusion that he has been well-behaved in both types of facility.
The evidence about the Applicant’s use of cannabis does not show that he was using it regularly while in prison since he was sentenced or while he has been in immigration detention. The only reference to the Applicant’s cannabis use to which I was referred or could find, is in a Corrective Services NSW Review of Classification assessment carried out on 23 November 2017 when the Applicant was in Metropolitan Special Programs Centre. The report was:
22 Are there any management concerns? If other, comment required?
Drug abuse problem Cannabis (Every day)
The Pre-release report stated that he was subject to urinalysis on 17 March 2022 and 17 February 2023 with nil detected results.
The Applicant’s report of no history with drug use until recently and then to a relatively minor level referred to by the sentencing judge is consistent with my conclusion.
I do not accept that drug use was a motivation for offending in 2015 or will be in the future.
However, for reasons which I elaborate upon below, I have concluded that the Applicant not only showed disregard for Australian law at the time of his 2015 offending but continues to do so in his effort to obtain revocation of the mandatory cancellation decision.

It is clear that the Applicant was aware of the possibility that his visa would be cancelled at least from 18 to 20 April 2018.[6]
[6] Corrective Services NSW Offender Programs/Services Status Report dated 23 March 2021 for the date range 5 December 2015 to 16 March 2021.
Two reports from psychologists were in evidence. The 2018 report was admitted in response to concerns raised about the Applicant’s credibility because it appeared that he raised claims about childhood trauma for the first time when being assessed by a psychologist in the early days of April 2024, shortly before the hearing. The matter was adjourned to enable the 2018 report to be provided in accordance with section 500(6J) of the Act. The report is unsatisfactory as an expert report for the reasons set out by the sentencing judge. In that report, the psychologist assessed the Applicant as falling in the low range of recidivism. The second report dated 5 April 2024 was prepared by Dr Yoxall. She considered that the Applicant’s falls within the very low, even negligible risk of reoffending.
The sentencing judge concluded that the Applicant had reasonable prospects of rehabilitation. That was at the time of sentencing which is more than six years ago.
For reasons I will set out shortly, I am not satisfied as to the facts upon which Dr Yoxall based her diagnosis of Post Traumatic Stress Disorder (PTSD), and therefore the impact of that condition, and her assessment of his risk of reoffending on that basis.
On its face, the evidence suggests that the Applicant’s risk of reoffending is low because he has been incarcerated for eight years four months and has spent more than two months in immigration detention. He behaved well while in prison. For the reasons I set out below, I accept that he is desperate to regain his Australian Permanent Resident status so he can work in Australia, provide a reasonable standard of living for himself and provide financial support for himself and others who currently live in Nigeria, and enable him to return to Nigeria when he wishes to visit them. For the reasons given below, I have concluded that those people are his elderly mother and his eight year old daughter and possibly her mother. He wishes to bring his daughter to live in Australia in the future. He has discussed that with his wife. Where his wife figures in his plans is less clear. His twin sister died in 2023. Her husband and daughter continue to live in Nigeria.
The Applicant’s motivation for offending in 2015 was financial, as the sentencing judge found. I accept that it related to his personal circumstances and relationships. However, the evidence about those circumstances and relationships is inconsistent. Of particular concern is the future of his relationship with his wife which is relevant to the role she will play in his rehabilitation and the consideration of the strength, nature and duration of ties to Australia. It is necessary to closely examine the evidence.
In the Personal Circumstances Form dated 22 January 2021 provided in support of his application to have the mandatory cancellation decision revoked, the Applicant set out the following explanation for his offending, while conceding there was no excuse for it:
·Becoming homeless on arrival in Australia
·Living in a tent for just over a year with his wife whose health was deteriorating
·The situation put stress, depression and conflict on them both
·Not being able to get a job straight away
·He was unable to provide for his wife who was unable to provide for herself any longer and his aged mother in Africa upsets him.
The first four facts accord with the evidence. However, the fifth does not.
Given the importance to the Applicant of having the visa cancellation decision revoked, it would be expected that he would consider each question carefully and provide the best, most accurate, and truthful information he could in response.
It is significant that he did not mention wishing to provide financially for any of his mother, sister, or his then unborn child and her mother, all of which arise from other evidence. In that form, he did not list his daughter in response to the request to list all minor children (under 18 years of age), including biological, adopted, and step-children, and to provide evidence such as birth certificates. Consequently, he did not describe his relationship with her.
The question was clear. He did not satisfactorily explain why he did not list his daughter. He did list a friend who lives near his wife, N’s daughter as an other minor child in his life and set out in great detail his relationship with her. She is no longer a minor.
The Applicant stated in the document that his mother was born in Nigeria, which is inconsistent with his evidence that the substantial cause of his traumatic childhood was that his mother was a Zulu South African who met his father when he worked in the latter country and therefore his father’s family never accepted her. Again, the question was clear and the Applicant gave no satisfactory explanation.
The evidence establishes that the circumstances of the Applicant and his wife from his arrival at the end of December 2013 until his arrest on 4 December 2015 were the following.
The Applicant and his wife became homeless when he arrived in Australia in December 2013 on a Subclass 309 Partner (Provisional) visa or shortly thereafter.
His wife, who was born in June 1959, could no longer work because of a back injury which was the result of her work as an aged care nurse. Her landlord put up the rent and she could no longer afford to pay. She and the Applicant bought a tent or tents and moved to live in the backyard of his wife’s friend, N.
The Applicant’s wife accessed some of her superannuation. The Applicant either sold part of land in Nigeria that he inherited from his father who died when the Applicant was seven years old or received an inheritance. In any event, the Applicant received $7,000. He and his wife received some charitable support.
They lived in the tent for about a year until about the end of 2014. During that time his wife began to receive Newstart Allowance and the Applicant tried unsuccessfully to get a job relying on his Nigerian Bachelor of Business and either a Diploma or Masters of Economics degree from a Malaysian institution.
There are different versions of the precise circumstance at the time the Applicant moved out.– his wife said that she asked him to. He gave two versions. The first, that she moved out of the tent into her friend’s house. She told the Tribunal she never lived in the house. At the resumed hearing, the Applicant said that the tent was flooded and the shower/toilet facilities were ruined which resulted in his wife using the facilities in her friend’s home and the Applicant not being able to use those facilities because they were being used by his wife, and N and her daughter. I do not accept either. I accept the evidence of his best friend BA who I find is a reliable witness. Her evidence is consistent with his wife’s account. The Applicant stated that his wife asked him to leave the home. He also exaggerated the state of the tent. His wife said that it was like a home but the walls moved which indicates a substantial structure. That she remained in it for another six months reinforces a finding that it was not in the poor state the Applicant claimed.
Movement Details show that the Applicant was absent from Australia for about five months during 2014. He returned to Nigeria twice from 1 May 2014 to 28 June 2014 and from 11 September 2014 to 18 December 2014. When he left Australia on 11 September 2014, he held a temporary spouse visa. When he returned on 18 December 2014, he held a permanent spouse visa and was an Australian Permanent Resident. Within a very short period of time, he moved out of the tent.
After leaving the tent, the Applicant lived in his car for some weeks or perhaps three months. Sometime in 2014 he had met another Nigerian national, who became his co-offender, and who lived in the same region. He was introduced to another Nigerian national and moved into his house or an apartment at his house with other Nigerian nationals in about March-April 2015. By the time of his offending, he had been introduced to cannabis by the friend who owned the house and was using five joints a day. He was arrested at that property.
Towards the end of 2014 BA, visited him from another state because she was concerned about him. She thought that he was depressed. She advised him to get any job. The evidence about the order in which he got his jobs is inconsistent but the consistent evidence is that at some stage he had a cleaning job, a job at Steggles on the production line and driving doctors to see patients. He was doing the latter job at the same time as one of the other jobs. There is a record that suggests that he also received Jobseeker Allowance at some stage, which is consistent with his visa and resident status when he returned to Australia on 18 December 2014. The Applicant said that he was earning between $800 and $1,100 per week after tax at the time he was offending.
The Movement Details show that during 2015, the Applicant returned to Nigeria from 29 April 2015 to 7 May 2015 and from 4 June 2015 to 26 June 2015. During the latter visit, he fathered a child. His daughter was born in February 2016 and is now eight years old.
How he supported himself during his return trips to Nigeria is not clear. I infer that he stayed with his mother or sister and her family. He said that he stayed with his sister during one visit. He said that he could buy a return air fare for $800. Accepting that claim, the total cost of his airfares for 2014 and 2015 was at least $3,200. Spending that amount of money on returning to Nigeria does not seem consistent with being concerned about providing for his wife. Being absent in 2014 for five months when he was not earning any money or trying to find a job in Australia, is inconsistent with his claimed concern to support and care for his wife, and himself when they were in desperate financial circumstances. During the hearing he said that he borrowed money from his co-offender to send to his sister who had been diagnosed with diabetes, $500 or $1,000. He said that his friend, N, had paid for one trip. Staying in Australia and trying to get a job rather than borrowing money to return to Nigeria would have been consistent with being concerned about his and his wife’s financial situation.
During the 10 years he has lived in Australia, the Applicant resided with his wife for about seven months in 2014. He resided in the community for a total of about 17 months.
The Applicant claimed that he was to receive $10,000 for his offending. I do not accept that is correct. The wholesale value of the drugs was $983,000 and the street value was nearly $3,000,000. He was a principal in the offending. $10,000 was not very much when compared to his weekly income of $800 to $1,100, his borrowings from his co-offender, his outlay for some of his airfares over two years and his various claims about the financial needs variously of his mother, his sister or for the mother of his unborn daughter. Importantly he had bought a ticket to return home to Nigeria ‘for good’ on 7 December 2015, just after his arrest. I infer that he wanted sufficient funds to re-establish himself in Nigeria comfortably and be able to provide for relatives who lived there, particularly his unborn child, her mother and his elderly mother. It is likely that the amount he was to receive for the offending was a far more substantial sum than $10,000. During the hearing, the Applicant denied that he had intended to return to Nigeria for good in December 2015. I do not accept that.
The Applicant disputed the correctness of the Movement Details. He claimed that he could recall only two return visits to Nigeria for a wedding and a funeral and that he did not stay outside Australia for more than 90 days. I accept that is the case in 2015 when he had a permanent visa and Permanent Residence, however, I accept that the information in the Movement Details is correct. He appeared to be surprised that there was a record of his travel.
As to his wife’s financial circumstances at the time of the offending, her evidence was that sometime in 2014 she began to receive an unemployment benefit and by mid-2015 she was receiving Disability Support Pension (DSP) and had moved into public housing. The Applicant accepted that was so during the hearing. She claimed that the Applicant was about to move back in with her before his arrest. There is no corroborative contemporaneous evidence of that claim. To the contrary, he was intending to return to Nigeria for good on 7 December 2015, although his wife may have believed that he was about to move back to live with her.
From around June 2015, the Applicant’s wife was in a position to provide financial assistance for the Applicant by giving him a place to live, as she proposes to do if the Applicant is released. Although it is not clear whether the Applicant would have paid any rent to live there, it seems likely that such rent would have been less than the $250 per week he claimed he paid to live in a share house.At the present time, his wife continues to receive DSP and live in public housing where she and the Applicant will live if he is released into the community. She has been receiving supports under the National Disability Insurance Scheme (the NDIS) for a couple of years. She said that currently she is living comfortably and the Applicant can go to work without worrying about caring for her because of the support she gets from the NDIS.
The contemporaneous evidence shows that the Applicant and his wife were estranged from the time he moved out of the tent at the end of 2014 until after his arrest on 4 December 2015 at the residence of a Nigerian friend where he lived. A file note dated 30 December 2015 when he was in Parklea Correctional Centre recorded that a phone call was facilitated to his wife and friend ‘supportive and good family support’. The records suggest that the friend was the Nigerian friend in whose home he had lived and been arrested. It also recorded that he was living with family. He was not living with his wife. It may be that he regarded his Nigerian friends as family.
The above circumstances lead to the conclusion that the person or people who the Applicant wished to provide for financially by offending, apart from himself, lived in Nigeria. I do not accept that he was providing for his wife financially after he left the tent. She was not his priority.
At different times, the Applicant has given different evidence about who he was supporting in Nigeria before his arrest.
The earliest evidence is in the 2018 psychology pre-sentence report. Given the context, it seems that it would have been very important to the Applicant at the time. When asked about this report, essentially, he said that his lawyer told him to attend. He did not know about psychologists. He did not understand what it was about.
If that were the case, it would not be unreasonable to expect that what he told the psychologist was true and correct in any event, given that he had been told to attend by his lawyer, whom I infer was preparing for the sentencing hearing. All the evidence shows that the Applicant is an intelligent and very determined man. I do not accept that he would have been careless as to his answers.
I did not understand the Applicant to seek to rely on this report, apart from to establish that the Applicant had reported incidents of childhood trauma. For certainty, I agree with the assessment of this report by the sentencing judge and would not accept its assessment of the Applicant. This report includes the earliest account of the Applicant’s claims of traumatic childhood. The psychologist reported that the Applicant told her the following.
His mother was 75 and had previously been a cleaner. She suffered from diabetes and high blood pressure.
His twin sister lived eight hours away from their mother and was unable to provide practical assistance for her. It had been arranged for a girl to live with their mother to assist her, on the proviso that the girl would attend school. His sister could no longer pay the school fees. He was unsure if the girl would remain to assist his mother. His sister is married and has a daughter and is involved in home duties.
The Applicant was involved in a brief relationship with a 28 old Nigerian woman which resulted in the birth of his daughter. He has always sent money to Nigeria for his daughter’s care as he did not want her to experience poverty as a child. Since his incarceration he had been concerned that he was unable to send money to meet his daughter’s needs.
The following is a summary of the first account of the Applicant’s childhood trauma to the psychologist in 2018.
His life changed rapidly after his father died. His eighteen paternal uncles were not willing to provide any assistance for his mother and her children because his father was Nigerian and his mother was from the Zulu tribe in South Africa. The marriage was never approved from the beginning. For that reason, his mother decided to move to the home of his father’s friend in northern Nigeria where they lived for six months before war broke out between Muslim and Christian members of the population. His father’s friend, his family, and all the other villages were killed one night when attacked. His mother took her children out the back door instead of the front door which meant that they were not immediately shot. As they went out, they fell into a sewage pit and were rescued by the Red Cross the next morning who cared for them for three to four months. With nowhere else to go, his mother returned to Amesi, the town where his father was born. He was nine years old. They moved into an old farmhouse belonging to his father’s family which had no functional roof. His father’s 18 stepbrothers from different mothers did not want the children living there because of their mixed blood. Every night his uncles would come to the house and rape his mother. This continued for years because his uncles believed that they could force his mother to leave Amesi. When he was 11, he believed that they had killed his mother, tried to fight back and was badly beaten. This was the first time he self-harmed. His mother still lives in the farmhouse. He put on a new roof many years ago and tried to improve the property for her.
They were very poor when he was growing up in Amesi and frequently did not have appropriate clothing for school or enough food. His sister was bullied by villagers.
Between the ages of nine to 14, he was frequently troubled at school because he did not have a school uniform and sometimes suspended and other times made to kneel in class. His teacher would often send his sister home after school and he would then take the Applicant to the storeroom and sexually assault him.
It is only necessary to set out some of his evidence about his education and employment. He completed all his primary and secondary education in Amesi. He completed the equivalent of the Higher School Certificate. While he was at high school, his mother worked as a cleaner to provide for the family and he carried loads of shopping for villagers to assist with the finances. He traded in textiles with a neighbouring country while at university and then remained in Nigeria for another two years and started a laundromat business.
While studying in Malaysia to complete a post-graduate diploma in Economics, he generated funds for his university and living expenses by driving businessmen around and buying cars in America with his earnings and reselling them in Amesi, through a friend.
The Applicant told the psychologist about his work history in Australia, which is not significantly different from other versions, and stated that he desperately tried to secure other employment as he did not have enough money for accommodation and his daily needs.

Turning to the prison records, the Applicant sought and received psychological assistance at Macquarie CC throughout 2019 from 27 January 2019 until 19 March 2020 when he decided he longer required such assistance. That was shortly before his transfer to Bathurst CC where he put into practice the dog training lessons with assistance dogs for veterans. He completed 10 Sessions (20 hours) of Mood Management Cognitive Behavioural Therapy Group from 14 November 2019 until 19 December 2019. The records show that during sessions he disclosed various a number of traumatic events, suffered difficulty sleeping, had relationship difficulties with his wife which had improved by 19 March 2020. He was in contact, sometimes by AVL, with his mother and sister in Nigeria as well as his wife.
The Pre-release report dated 3 October 2023 prepared by Corrective Services NSW Community Corrections, stated that at the time of the offending, the Applicant was financially assisting his mother and his twin sister in Nigeria. He was experiencing financial strain within his homelife and could not identity another way to improve his financial situation. He had currently reconciled with his wife who is his only support in Australia. His twin sister passed away in July 2023 in Nigeria. The Applicant discussed the ingrained cultural beliefs he has related to financially supporting his family and how he felt about letting them down.
Dr Yoxall prepared her report following a videoconference on 2 April 2024 and a teleconference on 5 April 2024 with the Applicant. Her report was dated 5 April 2024 and was provided to the Tribunal on the same day. The first day of the three day hearing was 10 April 2024. Apart from the referral from the Applicant’s legal representative, the only documents Dr Yoxall considered were those in the bundle with the cover sheet which stated Section 501G Documents. She did not have or otherwise consider the psychologist’s 2018 pre-sentence report which was provided on 18 April 2024, after Dr Yoxall had given evidence.
I only set out evidence of significant relevance.
There appears to be a typing error. I understand [the Applicant] is actually his wife. She has an adult son and daughter and five grandchildren, with whom the Applicant has a good relationship. He has a daughter who lives in Nigeria with her mother. He recently contacted the mother and they are now in communication.
His twin sister died in 2023 of renal failure arising from chronic Type II Diabetes Mellitus. Prior to his incarceration, he regularly sent her money to assist to pay for her medical treatment, and to his mother when he was able to. He sent the $50 per week he earned while working in the Defence Dogs program to his sister. He has been unable to send money to his mother or daughter since he has been in immigration detention because he has no means of an income.
His father died when the Applicant was seven years old. Thereafter he, his mother and sister lived in abject poverty.
The Applicant experienced extreme and complex trauma during his developmental years. Information available indicates that the impact of the trauma, together with cultural barriers meant that he was essentially unable to communicate his experiences until he manifested active PTSD symptoms in prison and accessed psychological intervention.
He denied any past drug use.
His mother is of the Zulu tribe and was born in South Africa. His father’s family did not accept her due to tribal differences. She and the Applicant’s father lived thousands of kilometres from her family in South Africa. The Applicant’s father’s family was very large because his grandfather took seven wives and had many children, including paternal uncles.
His mother gave birth to nine children before her pregnancy with him and his twin sister. All nine died as infants. He now considers it was because of lack of clean water, cholera, typhoid etc. At the time, his mother, already an outcast from his father’s family and Nigerian culture was blamed for the deaths. She was considered to be a ‘witch’ who had caused their deaths. The belief in witchcraft is central to Nigerian society, particularly to his mother’s generation and before that. His father’s family had encouraged him to take other wives because his mother was a witch who could not give him children.
He and his twin sister were considered ‘evil’ or ‘witch children’ because they were twins. Dr Yoxall understood that killing twins as a sacrifice was a cultural practice in some ethnic groups in Nigeria because giving birth to twins was considered a bad omen that could bring devastation to a community. Dr Yoxall referred to and cited a small literature on the stigma of witchcraft beliefs in Nigeria and other African countries.
Those factors, many of which were present for over a decade before he was born, substantially impacted how the Applicant was treated by others during his development years. He and his sister were considered fundamentally ‘evil’ children by teachers, extended family members and others living in the community.
While his mother was loving and determined to give him and his sister a safe life, she was living with complex grief and trauma which formed a degree of intergenerational trauma.
The Applicant’s father was an architect who raised him and his sister as Catholics. His father collapsed one morning as he was preparing to take the two children to school on his way to the office. The Applicant walked out of the house to go to the family car to find his father dead in the driver’s seat. His sister had witnessed her father die.
The Applicant’s life changed dramatically. His mother was rejected by his father’s family and forced to leave their family home. There is no welfare system in Nigher and she had no money to provide for them. They became homeless.
They were assisted by a family who lived in the north. The Applicant’s family moved to live in the home of the other family. The Applicant was eight or nine years old. The early version of the Boko Haram movement was carrying out attacks on Christians. The Applicant recalled a horrific experience when the extremists came down the residential street, setting fire to the homes of the Christians who lived there. The family they were staying with lived at the end of the cul-de-sac street. When the father of the family went out to investigate the noise, they became aware that they were under attack. He recalls the three adults (his mother and her friend and her friend’s husband) frantically trying to plan their escape with their four children (the Applicant and his sister and the two children of the host family). The father’s car was too small to fit three adults and four children. They were delayed from leaving because of the discussions about the escape plan. The Applicant said that he was a fearful child who cried and wailed and did not want the family to leave them. It was decided that the man would drive his own family to safety and then return to collect the Applicant and his mother and sister. He and his mother and sister then ran to the backyard of the house to hide. They quickly realized that the car, with the family of four, had been set alight by the extremists. He said the memory of the screams of the father, mother and two children were seared into his memory, as was the smell of burning flesh. In attempting to escape, he and his mother and sister fell into a sewer pit in the house yard. His mother had to hold her hand over his mouth to stop him crying because the extremists searched the house and yard for any remaining Christians. The Applicant believed that they would be murdered. They hid in the sewer pit until the next day when the Red Cross flew helicopters in, looking for survivors.
His mother took him and his sister back to the area that they had lived at before their father’s death. They had no money for food or a home. They lived in an abandoned home which was dilapidated and did not have a proper roof or doors. When it rained, the roof leaked and they slept on sodden mattresses. His mother would try to grow and sell vegetables at the markets. He would go to the markets and loiter until he saw people purchasing items and then would offer to carry things back to their cars for them in exchange for a few coins. He recalled one night when two masked men came into the shelter and raped their mother in front of them, with each man taking turns in holding her down whilst the other one raped her. The Applicant said that this horrific experience haunted him and his sister. They were powerless to help their mother, lest they be attacked and murdered. He said that he later came to realise that it was his father’s brothers who had organised the attack because they wanted to scare them off.
The Applicant was about 13 years old when his father’s brothers abducted him and blindfolded him and threw him down a disused well. He was walking home from the market on dusk when the abduction occurred. He recalls falling to the bottom of the well. He was in pain and could not stand up properly. He suspects ribs were fractured. His uncles intended for him to die so that they would inherit his father’s property. The Applicant explained that under Nigerian law, only males inherit and as the son of his father, he was to inherit his father’s property before his father’s brothers. He was in the well for one week before a local man found him the next day whilst out hunting with his dog. When he arrived home his mother was beside herself with panic, believing that he had been murdered. His mother tried to seek justice for this abduction and her rape but the local legal system did not successfully hold his uncles to account.
The Applicant described sustained sexual abuse by a female teacher that commenced when he was 13 years old and continued until he was 15 years old. He said that he was regularly blamed for any wrongdoing at school because he was a twin and an ‘evil child’. He said that the abuse started after an incident at school during a play fight with another boy. He pushed the boy down on to the ground. The female teacher kept him back after school to clean toilets as a punishment. His sister was sent home. After he had finished cleaning the toilets, his clothes were wet. The female teacher told him to get undressed and then told him to touch himself. Soon after that another incident occurred at school and the teacher used the excuse of keeping him behind as punishment. She forced him to give her oral sex. He was distressed and felt confused and nauseous. However, he was also scared of her and scared to tell anyone because he was used to being blamed as an ‘evil child’. From thereon, the abuse became regular. He would be kept back most afternoons after school. He said the teacher would instruct him how to give her oral sex and would beat him if he got it wrong. He became resigned to the fact that it was going to happen on most school days. He did not want to tell his mother because he did not want to cause her more distress. When she asked why he was staying back after school, he said that he was doing extra study. The abuse continued over nearly three years. As a male child, being sexually abused by a female teacher in the Nigerian culture in the 1990s, he was powerless to extricate himself. He said, ‘in the end I grew used to it… I knew what was expected of me… I would do it and then go home’. He said that for a long time he felt very angry. He had no confidence and was considered rebellious. He said that he was known as the boy that did not smile. In later years he learnt that his sister was also sexually abused by church leaders and she also felt unable to tell anyone.
The Applicant’s sexual abuse continued until he left the school. He struggled to cope with what had happened and he struggled for years with distorted beliefs about sex and intimacy. He said that neither he nor his sister ever told their mother. He said that she would never forgive herself if she knew what happened to them.
The Applicant’s first visa application was denied because his relationship with his wife was not considered to be genuine because of her age. Being homeless, unable to protect or provide for those he loved, and living in a leaking tent after he arrived, triggered his own childhood trauma.
At the same time, his sister was experiencing rapidly deteriorating health in Nigeria. When he was living and working in Malaysia, he sent money home regularly to support his sister’s healthcare because she was not able to consistently afford it in Nigeria. There, the individual has to pay and the services are poorly organised and resourced and there is a lack of medical practitioners trained in diabetes management. In Australia, the $7000 proceeds of sale of property he inherited from his father which he used to live on with his wife soon ran out. He had no income and could not access Centrelink payments because of his visa conditions. He and his wife relied on food donations from the Salvation Army. He was powerless to assist his sister financially. She was unable to regularly access insulin and over time she suffered damage to her eyes, nerves, and kidneys. He worried about his sister dying and his mother having to grieve for another child.
The Applicant could not understand his feelings and reactions and withdrew from his wife and others. He was isolated and did not know anyone other than her, her friends and family and their church community. She became depressed and anxious because of their situation and struggled with his sense of failure to provide for her. In that context, he met his co-offender whom he knew for two years before the offending, The Applicant trusted and looked up to him because he had been in Australia for a longer period.
The Applicant and his wife separated. He visited Nigeria and had an affair which resulted in a pregnancy. He told his wife when he returned. Eventually they reconciled.
He was able to send some money back to his sister in 2015 when he worked but by that time, she required dialysis which was more expensive. It was desperation that made him accept his co-offender’s offer of payment for tasks (writing emails etc) which he ultimately realised was part of drug importation. He was promised $10,000 which would have substantially supported his sister and his wife.
Dr Yoxall understood that the Applicant’s co-offender had stated in an affidavit dated 4 January 2016 that he thought up the plan and the Applicant was not aware of the prohibited drugs. The affidavit was not used by the Applicant’s lawyer and the Applicant pleaded guilty. For the reasons given earlier in this decision, I do not accept that the document is genuine.
During the hearing the Applicant gave an account of his life which included most of the circumstances related to Dr Yoxall.
The Applicant provided some different and additional details including that his mother was accused of murdering his father and had to swear an oath that she had not and wash his body and then drink the water. If she had murdered him, she would die within seven days. She was raped the first day they returned to the village from the north. He recognised the voice of one of the rapists. At the resumed hearing on the third day, he clarified that his mother had only been raped once and the person who sexually assaulted him was female.
The Applicant gave detailed evidence about his sister’s health before the offending. He said that she had been diagnosed with diabetes just before his offending, the living situation was hard and his mother was not well. He was under a lot of pressure because of his sister’s illness. One of his return trips was because his sister had lost her sight and was going for surgery. His friend in whose backyard he had lived in the tent, paid for one of his flights back to Nigeria. He said that recalling all those incidents was quite stressful for him.
His wife’s only recollection of his reasons for his return trips was to attend a funeral when an uncle died.
During the hearing the Applicant said that had had not been in touch with the mother of his daughter for a while. He contacted her when he came out of prison to find out how the child was going. The child’s mother did not know what happened when he went to gaol and thought he did not care about the child. It was not a good conversation between them. He does not know where she lived but could find out. He would want to build a life for his daughter. He spoke to her when he got out of prison. She does not know he is her father. He supported her mother to give birth and told his sister about her. He had to tell his wife which was a big problem. They made up after a while and his wife said that she would be fully engaged. She cannot have a child. That was not the reason for the affair. She supported the pregnancy and wanted the child to be born alive.
The conclusions I draw from the evidence are:
(i)His sister was not suffering serious illness until after 2018. Her health is not mentioned in the 2018 report, rather she had been providing financial support for her mother by way of paying for the carer’s school fees, which she had recently become unable to pay. She was doing home duties.
(ii)From June 2015, the Applicant was under pressure to financially support his mother and the mother of his unborn child. There are cultural norms to that effect. He had told his sister about the pregnancy. Prior to his arrest on 4 December 2015, the Applicant’s primary concern was his unborn child and providing financially for her mother until the birth.
(iii)It is probable that he planned to return to Nigeria on 7 December 2015 to establish a new life with the mother of his child and their child when born. Hs life in Australia had not met his expectations. He was in unskilled employment and on his own evidence not earning enough to live, by which I understand he means he could not meet all his financial obligations in Nigeria as well provide for himself.
(iv)He did not need to have enough money to buy a bungalow in Nigeria, which was referred to in the sentencing remarks. He owns the land on which his mother lives in an ‘old farmhouse’. I infer that the land includes the farmhouse. He owns his own home in Nigeria. I do not accept his claim that he has nowhere to live if he returns to Nigeria.
(v)The Applicant may have sent the money he earned from training assistance dogs for veterans to his sister, but equally he may have sent it for his mother’s care or his daughter’s case or some to each, whoever was perhaps in the most need at the time.
(vi)I am not satisfied that the Applicant’s contact with the mother of his daughter since his arrest has been as limited in time as he has claimed. He gave inconsistent accounts of when he spoke to her. Although he was unable to support his daughter financially, it seems unlikely that he would not have made inquiries about her well-being until sometime in 2022 or after he was released from prison, given his intention to bring her to Australia in the future and his concern about not being able to support her financially while in prison.
(vii)If released, his priority will be to provide financially for his mother and his child. Currently, his wife is independent financially and as far as care is concerned. Further, he wishes to bring his daughter to live in Australia. His wife knows of that plan and is willing to support it, although she recognised that there may be difficulty with accommodation.
I am satisfied that the Applicant has given the evidence about his sister being seriously unwell in 2015 and requiring his financial support to conceal his real motivation for offending. The evidence was also intended to elicit sympathy for his circumstances at the time of his offending to lessen his degree of criminality. If that evidence were correct, it does not seem consistent with receiving only $10,000 from the drug offending and returning to establish himself in Nigeria, in addition to supporting his mother, unborn child and probably the child’s mother. I do not accept that such an amount would enable him to establish himself to earn an income to meet all those financial obligations. That is in the context of his evidence about his capacity to earn in Nigeria before he went to Malaysia, from a basic laundry business. That is, I am not satisfied that he had an earning capacity which would have allowed him to re-establish himself in Nigeria in December 2015 and meet his financial obligations if he had received only $10,000 for the offending.

The Applicant sought to conceal the real reason for his offending because it shows that his relationship with his wife had ended by the end of 2015. That leads to consideration of the current status of their relationship. Before considering that question, I briefly address the evidence about the Applicant’s childhood trauma and Dr Yoxall’s report.
The Applicant’s accounts to both psychologists and the additional details given during the hearing are horrific and, if true, evoke horror and profound sympathy for the Applicant. However, because I am satisfied that the Applicant gives evidence regardless of the truth in order to achieve the outcome he seeks, I am not satisfied that any of the accounts he has given are true accounts of trauma he has suffered. There is no corroborative evidence. A crucial inconsistency in the evidence is that if his paternal uncles were so antagonistic to him and his mother, why did they not kill both of them or make them disappear? Why leave him alive in the well? Why was his mother able to continue living in the village and raise and educate her children for a number of years, at least until she moved to send them to the same mixed sex school in about year 10? There may be some truth to some incidents, however, his accounts are not reliable and it follows that any diagnosis made that is based on his evidence is not reliable. I acknowledge that the Applicant sought and received psychological care while he was in Macquarie Correctional Centre during 2019 and referred to some unspecified traumatic incidents. He also referred to personal issues and relationship difficulties. Having completed a program, he decided he did not require any further psychological support in early 2020.
Dr Yoxall assessed the Applicant and found that he was not feigning. For the reasons set out above, I do not agree with Dr Yoxall’s assessment. I give no weight to her report.
To be clear, there is sufficient consistency in the evidence so that I am satisfied that the Applicant’s father, who was real estate agent and/or architect, died when the Applicant was seven years old. His mother moved her small family from their apartment in a city to the farmhouse her husband owned in his village, which the Applicant inherited. In around 2014 he sold half the land. After his father’s death, the family experienced hardship relative to their previous life. His mother worked at relatively menial jobs such as a cleaner and growing food to sell to provide for her children. She ensured that they were educated. The Applicant completed the equivalent of Higher School Certificate. He then worked and studied in Nigeria and Malaysia to obtain two tertiary qualifications. His sister developed diabetes mellitus II at some time which caused her to become seriously ill after 2018 and resulted in her death in 2023, which the Applicant has found very difficult to deal with.
Returning to the current status of the relationship between the Applicant and his wife, the Applicant is very conscious that his strongest link to Australia is his wife. His relationship with her is crucial to the outcome of this application. His wife is a very sympathetic figure. She is a lady of mature years who suffers from bad health, including requiring psychological support, and cannot work. She requires care, which she is receiving. After the end of their relationship at the end of 2014, they have become reconciled over the years since they were in contact at the end of December 2015, after his arrest. I infer from the corrective services record that the contact was instigated by the Applicant. He was and is a very isolated figure in Australia.
Corrective Services records and correspondence show that since the end of December 2015, his wife has been his constant support throughout his time in custody and immigration detention. She has visited him when she was able to. She has communicated with him by telephone and audio-visual links and in writing. She strenuously supported his application for weekend release around 2020 which was not possible because of his immigration status. She has known him since about 2010 and supported him to obtain his visa to come to Australia and his cancelled permanent visa and permanent residence status. That required a review in the predecessor of a division of this Tribunal which was successful. She is devoted to him. She is his best friend in Australia.
Importantly, the Applicant will rely on his wife for accommodation upon his release. Gosford Community Corrections conducted a home assessment on 10 August 2023 at her residence and found it suitable. A risk mitigation plan has also been developed in conjunction with Community Corrections. The Pre-release report shows that if he is released from immigration detention, he will be released on parole into the community. His sentence ends on 3 June 2028, more than four years away. It will take him time to re-establish his life in the community.
During submissions, the question arose, what happens to the Applicant’s visa and permanent resident status if his marriage breaks down? His legal representative’s firm opinion was that once he had been granted permanent resident status, it could not be taken away. The Respondent’s instructions were that section 116(1)(a) of the Act empowers the Minister to cancel his visa but as a matter of policy that power is rarely exercised. The practical consequence of those submissions is that it is probable that if the marriage did break down, the Applicant would retain his permanent resident status.
Whether their relationship will endure is impossible to determine. He will retain his permanent resident stats regardless of his marital status unless some other factor arises.
I do not consider that the Applicant’s wife is a protective factor against the Applicant’s reoffending. She was not in 2015. The Applicant is a strong minded individual who will do what he wants to for whatever outcome he seeks to achieve, even if their relationship is sound.
I accept that the Applicant will try to find work if he is released into the community. Although I apprehend that he will be entitled to relevant social security benefits, his financial obligations to his mother and his daughter, and possibly her mother, will be strong motivation to earn money, as it was in 2015. The Applicant said that the mother of her child has a new partner. That may or may not be so.
How difficult it will be for him to find work with his criminal conviction and incarceration record has not been addressed. He has gained many qualifications while in prison which may assist his employment prospects including in the areas of business, fitness and recreation, animal studies, engineering and metal fabrication, and the responsible service and alcohol. It is very concerning that he may be under similar financial pressures to those he was under in 2015.
The Pre-release report specified that the programs and services that the Applicant would be referred to minimise the risk of further offending included targeting his risk factors, financial counselling, and monthly third party verification to ascertain his reintegration into the community, and engagement with services and to monitor stability.
He was assessed at a Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). The required contact with Community Corrections Officer was weekly for the first six weeks and a home visit in the first two weeks. After six weeks, he would be required to contact a Community Corrections Officer every four weeks, including a home visit after 12 weeks. The risk assessment and supervision level could be revised if any concerns were identified.
The Report recommended that a parole order be made for the Applicant with two conditions:
You must not use, possess, manufacture, or sell any serious drug or precursor, as defined from time to time, under Division 301 of the Criminal Code Act 1995.
You must not associate with anyone who uses, possesses, manufactures, or sells a serious drug or precursor, as defined from time to time, under Division 301 of the Criminal Code Act 1995.
While the Applicant’s conduct since his arrest until today in prison and immigration detention cannot be criticised and appears to demonstrate rehabilitation, his preparedness to deliberately give to the Tribunal and the Department misleading, if not deliberately dishonest evidence, including providing a 2016 document to the Department through his wife that is not genuine, demonstrates not just disregard for Australian law, but disdain. The provision of the 2016 document is conduct that falls within paragraph 8.1.1(1)(c)(f) of Direction 99.
The Applicant’s attitude and conduct is difficult if not impossible to understand when as he said himself, he has lost eight years of his life for breaking Australian law.
The Applicant will do what is necessary to achieve his objective. If he is under financial pressure, he is likely to reoffend. I cannot accept any of the assessments of the risk of reoffending in evidence. The Applicant has a real risk of reoffending.
The consideration protection of the Australian community weighs heavily against revocation,
Strength, nature and duration of ties to Australia
The Applicant visited Australia for a month in 2011 on a tourist visa. He was 31 years old when he came to Australia to live on 29 December 2013.
As detailed above, the Movement Details show that the Applicant returned to Nigeria four times in the two years after his arrival and before his arrest.
The Applicant was involved in the offending from September 2015 until his arrest on 4 December 2015. Excluding the periods that he was in Nigeria, the Applicant lived in the Australian community for a total of about 18½ months and a total of 15½ months prior to his period of offending that began in September 2015.
His work history has been set out earlier in this decision. It was confined to 2015. During 2014 and/or 2015 he did voluntary work for a charity. He has trained assistance dogs for veterans in prison and mentored young offenders. He said that he had spoken to high school children while in Bathurst CC.
His wife is an Australian citizen. She has an adult son and an adult daughter and several grandchildren from a previous relationship. She and the Applicant lived together until around the end of 2014 when they argued and she asked him to move out of the tent. He moved to live with other Nigerian nationals after a short period of living in his car. He and his wife lived together for about 30 weeks or seven and a half months during the first year he was in Australia. He has now resided in Australia for ten years and four months of which he has been in prison or immigration detention for eight years and four months.
The Applicant may have taken his wife some food and given her some money, including his first tax cheque after he left the tent. Their relationship was over from June when he had the affair with the mother of his child. As described above, since his arrest she has been a constant in his life and they have reconciled. She and is devoted to him. She suffers mental health issues and receives psychological support. I apprehend that she is looking forward to having the love and companionship of her husband living with her. His removal from Australia will be devastating for her.
Several friends of the Applicant, including former prison inmates and prison chaplains, provided written evidence. A corrections officer from Bathurst CC provided a reference. Four witnesses gave oral evidence, as did his wife. Two of those witnesses are friends of the Applicant’s wife who have become his friends. They all attend a church, which the Applicant also attended while living with his wife. All the witnesses regarded the Applicant highly. Following is a summary of the oral evidence that goes beyond that description.
The daughter of the friend in whose backyard they lived in 2014 is now 20 years old. She regards him as a father figure because she grew up without one. He took her to and from school and opened Christmas gifts. When he was in Sydney, they visited him practically every weekend. I find based on the evidence of the Applicant’s wife, the young woman’s mother and a photographs, that that was while he was in Long Bay CC before he was sentenced and perhaps at another corrections centre in Sydney just after he was sentenced and once at Kempsey. She has not visited him in quite some time. She started texting back and forth after she got his telephone number in late 2023. Her mother and the Applicant’s wife were protecting her. She has kept letters from him in a box. If he is removed from Australia, she will try to be in contact with him as much as possible. It will be earthshattering. She has already made list of things for when he is released including to be her father at her wedding. He is more a family member than most of her family.
The friend of the Applicant’s wife and the friend on whose land they lived, believes that he is not guilty because he said he did not do it. The Applicant said she had misunderstood him. She visited him a couple of times at Long Bay CC with his wife, their other friend and her daughter. She spoke to him once or twice when he called when she was at his wife’s place.
BA lost connection with the Applicant from around early 2015. He reached out to her about two and a half years ago when he reached out to her. They have spoken daily since he has been in immigration detention. She learned little bits about his difficult upbringing in 2015 after the separation from his wife. She found the Applicant’s present legal representative and provided most of the funds for this case.
The above evidence leads to the apparent conclusion that significant weight should be given to this consideration, particularly because of the likely impact of the Applicant’s removal on his wife and his friend’s daughter, both of whom suffer from mental health issues. However, whether their expectations will be met if the Applicant is released into the community is far from certain. His wife’s expectations were not met in 2015 when the relationship ended in 2014. It is very unlikely that she anticipated that he would offend as he did. Adjusting to living together again ten years later may not be easy. The Applicant has to adjust to life in the community which may not be easy. He is planning to bring his daughter to Australia. I do not discount the possibility that he may bring her mother. It seems unlikely that a woman who had cared for a child for the last eight years would let her to go to live with a man she barely knows in a foreign country. She may also wish to enjoy the benefits of living in this country. His relationship with his wife and the young Australian woman will change. How cannot be predicted. He may reoffend. He was not in the community very long before he offended very seriously.
I give this consideration moderate weight.
Expectations of the Australian community
Direction 99 provides that the Australian community expects that non-citizens obey Australian laws while in Australia and that the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[7] This expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[8]
[7] Direction 99, paragraph 8.5(1).
[8] Direction 99, paragraph 8.5(3).
It is not for a decision-maker to make an assessment of the community’s expectations.[9] The Tribunal must have due regard to the deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.[10] The decision-maker determines the appropriate weight to be given to this consideration.[11]
[9] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67] (Charlesworth J) and at [104] (Stewart J) and Direction 99, paragraph 8.5(4).
[10] FYBR at [75] per Charlesworth J.
[11] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72].
The Applicant put the following contentions.
He rejected the notion that the Australian community truly embraces and supports draconian laws including the lifetime permanent ban from Australia for all persons whose visas were cancelled pursuant to section 501 of the Act ‘regardless of the severity of the offending’. Such drastic and unforgiving laws do not exist outside the migration sphere, other than in very extreme cases. The recent High Court case outlawing indefinite detention indicates that these sorts of ‘lifetime’ punitive measures are simply too unfair, unjust and punitive in nature, especially when a person has already been judged, sentenced and has repaid their debt to society as properly determined by a court.[12]
[12]NZYQ V MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2023] HCA 37.
The Applicant noted the ‘no tolerance’ aspects of some of the language of Direction 99, especially with regard to the expectations attributed to the Australian community. The Tribunal’s job is to predict, not punish. Therefore, it must focus on making active, information-based decisions that are properly and fully informed by the factors present in the case, especially when predicting the future.
NZYQ was about the constitutional validity of a law enacted by the Commonwealth Parliament which authorised the detention of a person, other than through the exercise of a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt.
The Applicant’s contention does not raise a legal principle that applies in relation to the interpretation of this consideration in Direction 99. I therefore proceed on the basis of the interpretation of the terms of this consideration in the cases cited.
This primary consideration weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa.
Other considerations
Legal consequences of the decision
The Applicant specifically did not claim to be a refugee.
The Applicant put three proposition about the legal consequences of the decision.
The first was that if the decision not to revoke the mandatory cancellation of his visa was upheld, the mandatory punishment of the Applicant will be a lifetime ban from Australia without the possibility of waiver. Such a punishment is far worse than Australian rapists and murderers receive and has the potential to permanently separate the Applicant from his wife. There is no evidence that a Minister has ever granted a visa to a person whose visa has been cancelled on character grounds.
I accept the Respondent’s submission that permanent exclusion from Australia arising under cl 5001 of Schedule of the Migration Regulations 1994 (Cth) is not a legal consequence of a decision affirming the revocation decision for the reasons set out by Flick J at [15] in in DLJ18 v Minister for Home Affairs [13]. The other authorities referred to in the Respondent’s Statement of Facts, Issues and Contentions (SoFIC) reinforce my conclusion.
[13] (2019) 273 FCR 66.
I also agree with the Respondent’s proposition that the Applicant’s contention should be given little weight in any event because the Applicant may apply for a protection visa. I acknowledge that he has said that he will not but he may change his mind when this decision is published and he is faced with the prospect of being removed from Australia. Further, the purpose of the cancellation of his visa is to remove him from the Australian community because that has been determined to be the appropriate course having considered all the matters set out in Direction 99.
During submissions, the Applicant provided a reformulation of, or an additional further submission to that listed in its SoFIC as an impediment to return to Nigeria which relied on subsections 22(2) and (3) of the Nigerian National Drug Law Enforcement Act (1990 No. 33).

I consider both submissions. Decree 33 relevantly provides:
(1990 No.33, 1992 No. 15)
2. Any Nigerian Citizen found guilty in any foreign country of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into dispute shall be guilty of an offence under this Subsection (1990 No. 33)
(1990 No. 33)
3. Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fine and his assets and properties.shall be liable to forfeiture as provided under this Act.
I consider the first formulation first.
The 2019 report of the Nigerian Drug Law Enforcement Agency (NDLA) recorded that 85 Nigerian nationals that were deported from other countries over drug related offences ‘were appropriately debriefed, documented and released on bail’. The Applicant’s legal representative quite properly pointed out that section 22 does not include the requirement that a person be deported.
A Nigerian barrister, Mr Kenechukwu Osuji, provided written and oral evidence in support of this contention. The Respondent did not contend that he was not an expert witness.
Mr Osuji confirmed that the law is still on the books. He said that bail is a temporary freedom granted to any person under investigation for committing an offence. A bail bond is subject to conditions. Bail is not granted unless a person has been arrested. He said that it was most likely that the Applicant would be granted bail pending investigation. He has been unable to find any further information beyond the 2019 NDLA report. He has no documentation of any implementation other than what he had read. I infer he also meant and that he had referred to in his report.
He said that he had observed deportees to Nigeria who were arrested, detained, and granted bail. I infer that he was referring to when he had been present in court. He provided no documentary record of prosecution or charge apart from the NDLA 2019 report.
He gave no evidence about the construction of section 22 in Nigeria. Does the conviction for the offence of itself bring the name of Nigeria into dispute or is evidence required that that has been the result, such as there has been publicity about the offence in the foreign country? I consider that to be a real and unanswered question.
The 2020 DFAT report states that ‘[i]n practice, DFAT understands the Nigerian Government has rarely given effect to Decree 33’. In response to a ‘Country Information Request’ of the Australian High Commission in Nigeria (POST), POST reported that the information in the 2020 DFAT report is ‘still accurate’, that ‘DFAT is unaware of any cases in which Decree 33 has been applied in the last three years’. That is consistent with the NDLA report. The last instance of which POST is aware is someone being charged in 2003.
The Applicant’s legal representative objected strenuously to the POST information, on the basis as I understand it, that it was hearsay.
I do not accept the Applicant’s submissions that DFAT country reports and the POST information should be given insignificant weight, for the reasons and authorities set out by the Respondent in its SoFIC. If I did accept the Applicant’s submissions, the result would be the same because there is a lack of evidence from the Applicant about charges or prosecutions or convictions pursuant to section 22 of Decree 33.
First, I consider deportation. There was no evidence of how a deportation is executed from Australia. However, I will assume that the consequence is that the Nigerian authorities would know that the Applicant was deported for committing the offence of which he has been found guilty. There is no evidence that there has been a charge, a prosecution, let alone a successful prosecution, since 2003. The risk of the Applicant being investigated and subject to prosecuted is remote.
The Applicant can choose to return voluntarily. That seems a highly likely choice to avoid the possible application of the provision. If he did so, why and/or how will the Nigerian authorities know that he has committed a relevant offence in Australia? There was no evidence. It seems highly unlikely that a person who is aware of the provision, which the Applicant is, having sat through the evidence and the submissions, would not make that choice and not honestly answer a question on a passenger card about conviction, if there were such a question, of which there is no evidence.
I give this contention in respect of section 22 of Decree 33 according to this formulation little weight because it is highly unlikely that the Applicant would not return voluntarily to Nigeria to avoid the risk of anything happening to him because of section 22 and there is no evidence how the Nigerian authorities would know of the conviction if he did, apart from him honestly answering a question on a passenger card, of which there is no evidence.
The second formulation based on Decree 33 was that section 22 gave rise to the consideration of non-refoulement obligations which the Tribunal must consider, although the Applicant made no specific non-refoulement claims. This submission was made following the publication of the decision TJHG and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 812 on 22 April 2024.
In that case, Senior Member Fairall considered whether a non-refoulement claim pursuant to Article 14(7) of the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR) might be generated because the Applicant might be prosecuted under section 22 of Decree 33, and in the words of that Article, might suffer double punishment, also described as double jeopardy, if he is returned to Nigeria.
In addition to my reasoning above about the unlikelihood that the Applicant will return to Nigeria in circumstances where the Nigerian authorities would know that he had such a conviction, in my opinion, the second submission requires a legal analysis involving questions such as: What is necessary to establish ‘double punishment’?. What are the elements of each offence? That may require expert evidence about the construction of the particular offence according to Nigerian law. I have raised a question about its construction above. Having undertaken that analysis, do the two offences constitute ‘double punishment’? No such analysis supported by evidence has been put before the Tribunal. I consider this submission no further.
I give slight weight to the consideration the legal consequences of the decision.
Extent of Impediments if removed from Australia
The Applicant is a fit 41 year old man in physical good health. He is committed to fitness, as his wife corroborated in her evidence about looking forward to going to the gym together if he remains in Australia. As explained above, I do not accept the psychological evidence in the 2018 and 2024 reports. Given how strenuously he has opposed his removal I accept that the removal may adversely affect his mental health, at least until he re-established himself. I acknowledge that there are limited health resources available in Nigeria.
I accept that his wife is unlikely to relocate to Nigeria or visit him. This may be upsetting for the Applicant. They can continue to communicate as they have since the end of December 2015, apart from visiting him. Given the history of the relationship, including his planned return to Nigeria in 2015 and the future uncertainty of the relationship, I give this contention some weight. He will be occupied re-establishing himself in order to provide for his daughter, establishing a relationship with her and possibly her mother, as well as providing for his mother. If his relationship with his wife were more appropriately dealt with as an other consideration, I give it some weight for the same reasons.
He has no language or cultural barriers if he returns.
As far as his economic circumstances on his return, the Applicant claimed that he owes money to people who have harassed his mother and seized his brother-in-law’s property and he will be unable to repay the money. I do not accept that uncorroborated evidence given his lack of credibility. Although he wrote in the Personal Circumstances form that he had sold the property in Nigeria, during the hearing he said that he had sold part of it. He retains the ‘old farmhouse’ in which his mother resides. It is his home. He has accommodation available on his return. He has acquired many new skills while in prison which may assist him to get a job. He has demonstrated that he has an entrepreneurial ability, having run his laundry business in Nigeria and reselling cars while in Malaysia. I do not accept that he will not be able to support himself if he returns. I acknowledge that he will be obligated to support his daughter and mother. To the extent that there was a suggestion that he will have to support his brother-in-law and niece, I reject it because of his lack of credibility.
He claimed that in Nigeria it is a taboo and disgrace for a husband and wife to separate. His family would be heartbroken. Again, I give this assertion no weight in light of my finding that he planned to return to Nigeria in 2015 to re-establish his life there with the mother of his child and his daughter. I infer that they would have lived in the farmhouse with his mother.
He claimed to be concerned that he might be killed by Boko Haram if he returns. His home is not in the north of Nigeria. He did not suggest that his home was in an area where Boko Haram were present. I give this claim no weight.
I give little weight to the uncorroborated assertion that being in gaol and being deported would bring shame and more hardship on his family. The only people who know of those facts appear to be his mother, the mother of his daughter, his brother-in-law and perhaps his niece. If the assertion were true, it would not be in their interests to disclose either or both of those facts and it is unlikely they would do so. Further, it is unlikely that the Applicant would choose to be deported rather than returning voluntarily to spare his family such shame.
A further contention put by the Applicant which is appropriate to be dealt with as an impediment is that the Applicant may be subjected to extortion to avoid being the subject of action pursuant to Decree 33. As I consider it unlikely that the Applicant will knowingly submit himself to the risk of the application of Decree 33 by accepting deportation rather than returning to Nigeria voluntarily and would not answer honestly a question on the deportation card about conviction in any event and there is no evidence how the Nigerian authorities would otherwise know of the conviction, I give this contention little weight.
I give this consideration slight weight.
Conclusion
For the above reasons, I am satisfied that the considerations weighing against revocation, the protection of the Australian community and the expectations of the Australian community, far outweigh the considerations that favour revocation, the strength, nature and duration of ties to Australia, the legal consequences of the decision, and the extent of impediments that the Applicant faces if removed from Australia to Nigeria.
Decision
The decision under review is affirmed

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[sgd]........................................
Associate
Dated: 29 April 2024

Date(s) of hearing:

10, 12 & 24 April 2024

Solicitors for the Applicant:

Mr M Northam, Northam Lawyers

Solicitors for the Respondent:

Mr T Goodwin, AGS

Date(s) of hearing:	10, 12 & 24 April 2024
Solicitors for the Applicant:	Mr M Northam, Northam Lawyers
Solicitors for the Respondent:	Mr T Goodwin, AGS