Okafor and Minister for Immigration and Multicultural and Indigenous Affairs - [2004] AATA 975

CATCHWORDS – IMMIGRATION – bridging visa – character test – general conduct – forged documents – false statements – whether good character – whether discretion should be exercised – decision set aside.

Migration Act 1958 ss. 20, 31, 499, 501 and 501G
Migration Regulations 1994 Schedules 2 and 4

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Hoch v The Queen (1988) 165 CLR 292
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

DECISION AND REASONS FOR DECISION [2004] AATA 975

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2004/759
GENERAL ADMINISTRATIVE DIVISION     )

Re KINGSLEY CHIDI OKAFOR

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  17 September 2004
Place:  Melbourne

Decision:The Tribunal:
1.set aside the decision of the respondent dated 29 June 2004; and
2.substitute a decision that the applicant not be refused a Bridging E visa on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 2 July 2004, the applicant, Mr Kingsley Chidi Okafor, applied for review of a decision made by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 29 June 2004. The Minister had decided to refuse Mr Okafor a Bridging E visa on the basis that he does not pass the character test under s. 501 of the Migration Act 1958 (“Act”). I have decided that the visa should not be refused on that basis. He does pass the character test and, even if he did not, the discretion should be exercised in his favour.

At the hearing, Mr Okafor was represented by Mr Hughan of counsel and the Minister by his solicitor, Mr Chand. The G documents lodged pursuant to s. 501G of the Act (“G documents”) were admitted in evidence together with witness statements by Mr Okafor and his wife, Mrs Lexia Ann Okafor, a letter from Reverend Barfoot dated 8 September 1999, a letter from Mr Peter Wearne, who is a migration agent, to Mrs Okafor dated 20 November 2003, a letter from Mrs Okafor to the Migration Agents Review Authority (“MARA”) sent in April 2004, a report from Mr Guy Coffey, a clinical psychologist, dated 24 August 2004, a reference from Mr Fox dated 26 August 2004 and an affidavit by Mr Greg Vian sworn on 30 August 2004. Mr Okafor gave oral evidence in support of his case together with his wife. Mr Vian gave evidence in support of the Minister’s case.

ISSUES

The first issue is whether Mr Okafor passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second primary issue is whether the discretion in s. 501(1) should be exercised to grant him the visa.

BACKGROUND

I find that Mr Okafor and the person who was to become his wife and who was then known as Ms Lexia Ann Nation first met through an internet chat room. It was a Christian chat room coordinated by Mrs Okafor, who is a Minister of Religion with the Acts Churches Australasia, which is based in Queensland. Mr Okafor was raised as a Christian and continues to follow that faith. He found the chat room through Yahoo and it had a picture of his wife and her profile. They had a discussion about Jewish history at their first meeting in the chat room. Over time, they developed a friendship and chatted every day. Later, they chatted privately over the internet.

I also find that Mr Okafor obtained an electronic travel authority (“ETA”) to travel to Australia when he was in Malaysia. He and Mrs Okafor arrived in Australia on 21 December 2002. They were married on 14 February 2003 and lived together until Mr Okafor was taken into migration detention on 29 March 2004. At the time, he was studying Criminology at the RMIT and had been working for some six weeks in a hospital support service role at a local hospital. He had obtained permission to work in November 2003. Until then, he and his wife had been living on her income from Centrelink of $360.00 per fortnight.

Mrs Okafor, who was born on 27 August 1942, first married in 1966 and bore seven children, who are now aged between 28 and 39 years. In 1988, she was divorced. She has been an ordained Minister in her Church since 1999. She became involved with her Church when she was doing volunteer work with homeless and indigenous people, particularly women, in Outback Australia. Her past experience and qualifications have included registration as a State Enrolled Nurse in Victoria, three years with the Royal Australian Nursing Corps, five years as Divisional Officer of the St Johns Ambulance Brigade and a Diploma of Theology.

Mrs Okafor has been treated by the same general medical practitioner for almost 14 years. She suffers from diabetes, hypertension, arthritis, depression and heart disease. Her health has suffered since her husband has been placed in detention.

THE EVIDENCE

Mr Okafor’s family history

Mr Okafor said that his grandfather was King Igwe Umenna-ebue I of Anaedo in the south eastern region of Nigeria. Eastern Nigeria is made up of many nations but the predominant race is Igbo, to which Mr Okafor belongs. Until the Europeans went to Nigeria in the late 1800s, each town or related group of towns in Igbo lands governed themselves. They had a King, Village Assembly, the King’s Cabinet and Elders. After the arrival of the Europeans, many kings in Nigeria were dethroned and either killed or deported. Mr Okafor said that he understood that his grandfather had been dethroned in approximately 1914.

Mr Okafor’s father

Mr Okafor said that his father was a Colonel in the Nigerian Army in the 1960s but defected to join the Biafran Army in 1967. At that time, Biafra had seceded from Nigeria. He became a Colonel in the Biafran Army. When Biafra finally ceded its sovereignty to Nigeria and its Army was disbanded, Mr Okafor’s father returned to his home town of Nnew-Ichi. Nnew-Ichi is a town near Onitsha. There, he married Mr Okafor’s mother but he and others who had fought with the Biafran Army were soon sought by the Nigerian Army. The Nigerian Army were particularly anxious to find those who had defected from the Nigerian Army and Mr Okafor’s father fled from Nnew-Ichi. He worked as a travelling salesman. From time to time and two or three times each year, he would visit his wife but would stay only a few days lest he be caught in police searches. As a result of those visits, Mr Okafor’s mother bore three children; a daughter, Maureen, born in 1973, Mr Okafor, who was born in late August 1979, and John, who was born 1981 and died in 1994 of an illness. The children grew up in Nnew-Ichi with their mother.

Mr Okafor said that the last time that he saw his father was in 1996. At that time, the military government was under the command of Abacha. He said that the government was particularly oppressive at this time. Many people who had connections with the Biafran independence movement and others who were opposed to the military government were, Mr Okafor said, killed by the Nigerian Army. Those who had defected from the Nigerian Army were regarded as traitors. Their families in Nnew-Ichi were visited regularly by Federal Police as well as by members of the secret police. Those visits occurred three or four times each year. Some were in uniform and others were in plain clothes. At times only two visited the families but at others there were four or five. Mr Okafor said that he was very scared when members of the Federal Police or the secret police visited his family. They would question the family as to Mr Okafor’s father’s whereabouts and tell them that they needed him for questioning. At times, they would threaten to take his mother away for questioning. The last time that Mr Okafor and his family heard from Mr Okafor’s father was in 1996. In view of that, they have assumed that he was caught by the Nigerian Army and killed.

Mr Okafor’s education and work

Mr Okafor said that he attended primary school from 1984 to 1990. After sitting the common entrance examination in 1991, he studied at a seminary school. When he did not enjoy it, he left in September 1992 to complete his studies at the government high school. He took his final examination in July 1998. That was a University entrance examination but Mr Okafor said in his statement dated that he was not successful.

Mr Okafor said that employment was arranged for him in Lagos and he travelled to Lagos in 1998. His employer was a merchant, Mr David Okoronkwo, who sold clothing. Mr Okoronkwo bought clothes in Aba in Abia State. Aba is located some distance from Lagos and the journey would take about eight to ten hours. After he had been working for Mr Okoronkwo for a period, Mr Okafor said that he asked him to drive from Lagos to Aba. That was the first trip of what were to become regular trips for him. Mr Okafor said that he travelled to Aba about four times each year. Once there, he spent three or four days waiting for clothing to be ready so that he could transport it back to Lagos. The terms on which Mr Okafor was employed were that he was required to work for Mr Okoronkwo for seven days each week for seven years. His accommodation and food was provided and, at the end of the term of his employment, Mr Okoronkwo was to pay him a sum of money so that he could start his own business. Mr Okafor said that he was only one of several young men working for Mr Okoronkwo at the time.

During 2002, Mr Okafor studied for a further University entrance examination, the GCE, at a community secondary school.

Driver’s licence

Mr Okafor said that he was required to obtain a driver’s licence for his job. He said in oral evidence that he paid a fee for the driver’s licence. He obtained it by giving an agent his details and the agent obtained the licence. He paid approximately $AUS 25.00 for the licence.

A record of a conversation between an officer of the Department for Immigration and Multicultural and Indigenous Affairs (“Department”) and a Minister-Counsellor at the Nigerian Embassy in Canberra noted that a person must have a practical and a written test in order to obtain a driver’s licence. That person would also have to attend at a police station to have a thumbprint taken. The Minister-Counsellor offered to look into the matter further if the licence were sent to him for verification (G documents, page 214). The Department did not send the licence for verification and did not advise the Minister-Counsellor of Mr Okafor’s identity.

An article taken from the internet and written by Mathias Oko on 22 September 2003 noted allegations of fraud in the issuance of drivers’ licences. The Ogun State Ministry of Works and Housing had accused the Federal Road Safety Corps in Ogun of printing and issuing drivers’ licences. The allegations were denied and it was noted that the issue of drivers’ licences was a State matter. (G documents, page 212) A minute from an officer of the Department’s Document Examination Unit questioned a number of aspects of the licence but ended by saying that he could not conclude that the document is not genuine.

Mr Okafor’s involvement in MASSOB

Mr Okafor said that he was on his first trip to Aba in 2001 when he saw a newsletter published by the Movement for the Actualisation of the Sovereign State of Biafra (“MASSOB”). He described MASSOB as a non-violent, political and social organisation formed to advocate and promote the independence of Biafra. It is based in Aba. MASSOB is similar to other Biafran independence groups such as the Biafran Foundation and the Biafran Actualisation Forum. Mr Okafor said that all Biafran independence groups are targeted by the Nigerian police and secret services.

Mr Okafor said that he was very interested in the Biafran independence movement because of his family’s involvement with that movement. When he saw his first newsletter from MASSOB, he agreed with its contents. It gave details of how to contact MASSOB and so he went to its headquarters. MASSOB had called a large meeting at the last minute. Its meetings were always arranged in that way in order to avoid the attention of the police and secret service. Thousands of people attended the rally at which the Biafran Declaration of Independence was read out. Mr Okafor said that he was very excited by the rally and wanted to know more about MASSOB. He gave its representatives his contact details in Lagos so that he could be sent a copy of the newsletter. Back in Lagos, he began to read about MASSOB on the internet. He was too scared to go to MASSOB’s office in Lagos, he said, because he had been told that the police watched everyone who went there.

In cross-examination, Mr Okafor said that, despite his efforts to become more involved, he only ever attended rallies organised by MOSSAB. He found out about them through newsletters at the premises of certain vendors and at kiosks. They were not able to be seen by everyone and attempts were made to keep them from coming to the attention of the police for otherwise they would attend the rallies and kill people. At times, but not often, notice of a rally would be given in the newspaper. The police would find out about a rally at the last minute. Notice of a rally would be given at the last moment because of the nature of the police and secret service in Nigeria. Thousands of people would attend a rally. In all, Mr Okafor said that he attended three rallies. At the first two he attended, there was a fracas but he was not involved. The police, he said, always come, even if there is only a group of people in the street.

On his next trip to Aba, Mr Okafor said, he attended another rally held on Biafran Independence Day. Mr Okafor wanted to become further involved and attempted to make contact with the MASSOB leaders after that rally. He said that he found it very difficult to contact them because they were mostly in hiding from the Nigerian police and secret service. Mr Okafor referred to an article in the Nigerian newspaper, Vanguard, referring to the arrest of MASSOB members at a church in Kaduna on 9 May 2004 to support his evidence that MASSOB constantly comes under police attention (G documents, pages 166-7)

The article from Vanguard dated 10 May 1994 states that 150 members of MASSOB were arrested after a combined team of plain clothes policemen and security men invaded a Church Thanksgiving Service organised by MOSSAB. The officiating priest, who announced the presence of the security men at the Church, stated that the police had been given false information that MASSOB was conducting a meeting in the Church. He denied that there was any truth in that information. MASSOB has nothing to do with the Catholic Church, he said. The Deputy Director of Mobilisation of MASSOB, Mr Oliver Chidozie, was reported as expressing surprise that police and security operatives had trailed MASSOB members to the Church. Monthly Thanksgiving Services had been held from the beginning of the movement. They are combined with fasting and prayers because the members need God to strengthen them in their resolve to actualise Biafra. The weapons of warfare are not carnal but spiritual, Mr Chidozie was reported as saying.

The meeting of Mr and Mrs Okafor

Mr Okafor said that he told his wife who he was when he first met in the Christian chat room but did not give her much of his background. He did not know why he did not tell her at the time.

Before he left Nigeria, Mr Okafor said, he and his wife had not discussed meeting and had not made arrangements to do so. They knew that they should meet one day. They knew that something might happen because they “loved themselves” but she was in another part of the world. They had a “beautiful loving relationship”, he said. They had no plans to marry; they were more than friends and they knew that they might see each other one day.

Mrs Okafor said that they felt drawn to each other and seemed to know what each would type next in the chat room. When they first met, she did not really know where he was from as he was very evasive but she told him about herself. She did not ask whether he was a black person or not; colour and race had not been mentioned. When her husband sent a photograph of himself, she wrote to him: “You’re black!”. He replied: “Obviously”. That exchange occurred before he arrived in Malaysia. When asked whether she had plans or intentions for the future at this time, she replied that she had not thought about it. She was very busy and, although she had feelings for him, she had put them to one side. There was no talk of a definite meeting but there was talk about meeting sometime in the future.

In cross-examination, Mrs Okafor said that they discussed matters in general in their emails. Her husband knew all about the governments in the United States of America and in Australia. He did not talk about Biafra but said that things had changed and he could not live being a Biafran. He did not mention his membership of MASSOB. After about a year of chatting on the internet, Mrs Okafor said that she felt that the relationship was one that could lead to marriage. Nothing was discussed. They loved each other over the internet and had good debates but she thought that, at her age, she should not be courting a romance. The idea of marriage became concrete when they spent time together in Malaysia and she realised that she did love him.

In an email bearing the date 23 November 2002, Mrs Okafor wrote to her husband that she was back in Kuala Lumpur and that she would be at the airport to pick him up (G documents, page 218). She expressed her hope that she did not let him down and that their feelings were the same off the net as they had been on it. In giving her evidence, Mrs Okafor said that this was a lie. She had created the email and backdated it after the interview with the Department in May 2003. She had done in order for it to look as if they had arranged to meet rather than his “coming out of the blue” as he had done.

Mr Okafor’s detention and departure from Nigeria

Due to his further studies, Mr Okafor said that he did not go again to Aba until November 2002. In his statement dated 18 May 2004 (G documents, pages 158-165), Mr Okafor said that he had explained what had happened in an email to the UNHCR dated 2 March 2004 (G documents, pages 119-121) and in a letter to the Department dated 24 March 2004 (G documents, pages 96-99). In an email to his then migration agent, Mr Peter Wearne, on 7 January 2004, Mr Okafor said that:
“ On November 2002, I was on a buying trip from Lagos to Aba, I saw in a town square (at Aba) a gathering of people buying Biafran memorable, i.e., old army patches, coin, antique Biafran gun, used in Biafra era. So I went into the square and bought 20 pounds (old Biafran currency) with 100 Naira (Nigerian Currency) suddenly, Nigeria forces stormed the premises and turned stalls over, beating people as well as firing shots in air.
I was thinking just of running but the sounds of the guns were so scary, but i was made to get into the back of what i think was a troop carrier. There was about 15 to 20 people in there with me, we drove for what i thought was a long time but found out later it was the edge of the city. We were to light and line up, they took our valuables, my watch, my Gold cross and Biafran coin and Biafran 20 pounds note. I had only little money so they hit me on the back of my knees, telling me I must have more, but i didn’t.” (G documents, page 152)

Each of Mr Okafor’s statements was consistent in so far as it gave the history of events both before and after his being put into the troop carrier. So too was his oral evidence although he described the gathering as both a market and a very big rally. He added that there were Biafran flags and the Biafran colours were displayed. Mr Okafor also said when asked that six or seven officers took him from the rally. In cross-examination, Mr Okafor was asked whether the police had told him why they had taken him from the rally. When he replied that they had not, he was then asked if he had asked them for a reason. He replied that they were not people who could be talked to; they were intimidating figures. In Australia, a person could ask why but not in Nigeria. In Nigeria, only a person who did not like life would ask. Mr Okafor said that he could not see how many other people were taken. There were no windows in the troop carrier but there were other troop carriers at the rally.

On arrival at their destination, Mr Okafor explained what happened:
“ They huddled us into a tin shed, we all were submissive but it didn’t stop them from beating us. Whoever was near them, gets the worst hit, so we were pushing each other from one another trying not to be in front. We were not given any food for I think 2 days and nights, We had to go to the toilet in the compound just in front of everyone on the ground.
I was called into a small shed outside the compound, a very large and intimidating man just in blue fatigues with no ID’s. He was yelling at me in pig ion English saying, YOU DON RUN BUT NO GO HIDE (You have ran but you can’t hide) UNA WAN INDEPENDENCE, NO BE SO? (You want independence, didn’t you?). We know you even better than you knew yourself, Kingsley! son of Col. Okafor. You see it is high time we warn you to forget about defeated Biafra or go down the drain like most of your comrades, but you made your choice. You are defeated sectarians and will never rise anymore.
I did not answer back, I was quivering with fears as 2 boys had not returned from their time in what we called the drain shed. The second time, it was night, they came and hit me with baton and later sent me back into the shed, this time a man not so intimidating, he spoke quietly, asking me were my father was. We want to speak to him, he said. I haven’t seen my father over 3 years now, I said, I do not know if he is alive but before my mother’s death, she told me that she believe that my father has been dealt with by Abacha’s boys (Late Nigeria dictator).
This man asked me series of harrowing questions. Asked if i knew Ken Siro wiwa (Executed leader of movement for survival of Ogoni people) I am not Ogoni person, I said. And he yelled at me saying, I knew you’re not from Ogoni OK?
Then he asked me how often do i see Chief Raphael Uwazurike (MAS SOB Leader) I haven’t ever seen him in person. In fact i don’t know him, i said. They (2 guards) started hitting me all over my joints, hence the scars i have. I lost lots of blood and was becoming quiet ill. At night, they would hose us down so we will be wet and very cold till the sun came up then it became so hot. I would see my self passing out. At nights, they would unleash nests of red ants and devil beans all over us so we would be bitten by the ants and the devil beans makes us very itchy.
They brought us out in mornings and made us to jump like frogs around the compound and when we get tired and stop they will kick us with their boots. Each time they want to interrogate us, they will make us to walk up the hill on our knees and they whip us with cables if we stop walking.
All other’s suffered as i did. There as a bully who took over the food and decided who eat. We had just a jug of water to share amongst us for a day.
This torture went on for I think 2 weeks. I was becoming overwhelmed and not thinking well at all on the night we escaped. They (the forces) came into our filthy shed and belt us with whips, I received numerous whip injuries some which need stitches but did not receive medical treatment till much later hence i have whip scares from my head to feet, and on my left arm as i was trying to protect my self.
They made us sign statements, we did not know what it said. They did not allow us to read it, they said we would go down the drain if we did not sign it. I think that meant we would be put into this concrete tank in the ground and left us to die as we believed 2 had already gone into it.
Later that night we realized no one had come to check us, the bully got up with enough courage to look out the door slit, no guards, no trucks were insight, what does this mean? he asked, we all whispered and decided to leave the shed but scared of who will first move, or walk around the fence we spent long time trying to asses the situation till the bully make the lead and began to clime the fence and we all scattered in different directions, every one trying to climb faster. I was climbing in middle of two older men when we heard a gun shot then we intensified our struggle to jump over, we heard the shots firing in all directions. Some of us didn’t make it as the bullet caught them.” (G documents, pages 152-3)

Again, Mr Okafor’s various statements and his oral evidence were consistent in this regard. In cross-examination, Mr Okafor was asked if anyone in the shed had any idea as to why they were there. He replied that they talked in the shed and they knew that they were in danger. Many people had been taken away and never heard of again. They were there because they were Biafran but no-one knew why they in particular were in the shed. He was not told that he was in the shed because of his father. Only the man who interrogated him went to him and called him by his father’s name.

With regard to events following his escape from detention and departure from Nigeria, Mr Okafor said:
“ I was lucky, the 2 men seem to know their way around and where to hide. And we don’t hear from others or know their way abouts. The 2 men and i walked in the bush and we were so weak, it seems forever before we came to the edge of the city.
They took me to the Mission and they left (they were locals) where i met a missionary who only disclosed his name as pastor John from Europe. He took me back to Lagos in his 4WD jeep. We arrived in a mission called SYNAGOGUE of all Nations in Ejigbo-Isolo area of Lagos state. I washed with great discomfort and get fed. He told me i could not stay in Nigeria because the forces must be after me. He took a passport photo of me, my full names and signature. We went back to his room and slept as i was exhausted.
The next day he asked me where would i like to go if he can afford the arrangements and i told him that my girlfriend is in Malaysia. When he came back some days later, he had a small red folder, he told me to listen very attentively and i said, yes i will. HE opened the folder and said, this is air ticket and this is a passport, a British passport he said. If anyone ask you where you come from, tell him/her LONDON, he said. At that time i was very very sick and psychologically ill.
He took me to the air port. While he is driving, he was talking to me till we get to the air port but all i can remember is when he said, NEVER COME BACK, NEXT TIME YOU WILL BE DEAD. GO IN PEACE. THE LORD IS WITH YOU!” (G documents, page 153)

Mr Okafor did not know whether the two men he travelled with knew Pastor John or not but they may have known someone else from the mission. In his statement dated 18 May 2004, Mr Okafor described Pastor John as “… a big white man, with balding hair that was grey at the sides. He was about 50 years old and spoke English” (G documents, page 162). In that statement and in his oral evidence, Mr Okafor added that Pastor John told him to say, if he were asked, that his parents were Nigerian and had returned to Nigeria from London to retire. Pastor John also pointed out to him that the passport had been stamped with a trip to Turkey.

His date of birth was not that shown in the passport but a date nine years earlier. Pastor John had asked him when his girlfriend had been born and he said that Mr Okafor’s age should be increased as a result. Mr Okafor said that he did not ask Pastor John to do that. In cross-examination, Mr Okafor said that he told Pastor John about his wife when they got to Lagos. He told him that she was his girlfriend and that if things happened, they would marry. As for the change in his birth date, he did not know the motive for that.

When asked why Pastor John would help a person he had never met, Mr Okafor replied “because I was in danger”. In cross-examination, Mr Okafor said that Pastor John knew that Nigerians kill Biafran people. They would go to Church and shoot people. Pastor John knew he was not lying because he knew the situation at home.

Also in giving oral evidence, Mr Okafor said that Pastor John drove him to the airport. He showed his passport and ticket but his passport was not stamped to show his departure. Instead, he was taken to a side door, went through a metal detector and boarded the plane. At Singapore, his passport was stamped with details of his arrival.

Assessment of Mr Okafor’s claims of torture in Nigeria

On 19 May 2004, an officer of the Department conducted an assessment of Australia’s humanitarian obligations and concerns. The officer marked the box indicating that Mr Okafor had not “… experienced acts of torture or harassment in the past that may indicate a risk of similar treatment on return …”, was not at risk of facing the death penalty on his return and that there was no evidence that he would be killed, tortured or face cruel, inhumane or degrading treatment or punishment (G documents, page 198). The officer made a number of comments including:
“1. The Protection Decision Support Section reported on 20 May 2003 (CX79037) that:
Nigeria’s 1999 Constitution provides for an independent judiciary, freedom of speech, assembly, association, religion and movement; and prohibits arbitrary arrest and detention, cruel and degrading treatment and punishment, the expulsion of citizens, interference in private matters, and religious, sexual and ethnic discrimination.
Amnesty International reported that in the period prior to the April and May 2003 elections human rights violations as political violence increased, including assassinations of political leaders, clashes between supporters of different political persuasions both within and between parties, and intimidation and harassment of candidates and sympathisers.
Human Rights Watch claims that during 2002 the police and security forces were responsible for many extrajudicial executions, arbitrary arrests and detentions, torture of prisoners, and bribes. Corruption remained rampant within the forces, despite the creation of an anti-corruption commission and adoption of anti-corruption legislation in 2000. In order to deal with the increase of robbery and other violent crimes the National Police instituted an aggressive anti-crime campaign dubbed ‘Operation Fire for Fire’, which has been responsible for more human rights abuses by the police force…
…The US State Department reports that the number of violent inter-ethnic incidences was lower than in previous years…
…The National Human Rights commission (NHRC) set up in 1996 continued to monitor abuses.
It would appear, from this information, some human rights abuses of a political nature occurred in Nigeria in the lead-up to the 2003 elections. Other abuses have been perpetrated by the police and security forces but these seem to be indiscriminate and, largely, as a result of corruption. There is nothing to indicate human rights abuses occur in a systematic manner and Nigeria’s Constitution prohibits such practices taking place and the law provides punishment for such abuses. Furthermore, it has been reported that such abuses are being monitored and violent inter-ethnic incidences are on the decline.” (G documents, page 199)

As for Mr Okafor’s involvement with MASSOB, the officer referred to the report of the Department of Foreign Affairs and Trade dated 8 November 2002:

“Unless they have been proscribed as the result of criminal activity, organisations such as MASSOB have free rein in Nigeria, which, under the Obasanjo administration since 1999, has seen the introduction of genuinely free speech and freedom of activity by a wide range of opposition organisations.” (G documents, page 199)

The officer concluded that Mr Okafor’s support of MASSOB would not result in his coming to the adverse attention of Nigerian authorities.

As for Mr Okafor’s father, the officer stated that Mr Okafor had not produced any evidence to support his claims. Furthermore, he had not produced any evidence as to why he could not return to Lagos. The mistreatment claimed had occurred 500 miles away from that city.

Mr Guy Coffey is a Clinical Psychologist who is employed as the Direct Services Coordinator at the Victorian Foundation for Survivors of Torture, a sessional clinical psychologist at the Post Traumatic Stress Disorder programme with the Department of Veterans’ Psychiatry at the Austin and Repatriation Medical Centre and a senior clinical psychologist at the Saltwater Clinic in the Werribee Mercy Mental Health Program. For the past 17 years, he has been working in the public health system with a particular emphasis on refugees and people of non English speaking background. A reasonable portion of those people come from troubled places and manifest signs of being troubled people. For the last four or five years, he has visited the Maribyrnong Detention Centre (“Detention Centre”). At any one time, he is working with 30 to 60 people who have a traumatic condition as a result of a traumatic event. Normally, he would see people over a period of three to six months either once a week or once each fortnight. In that way, he is able to gain a good sense of their history and their psychological difficulties as well as get a strong sense of the individual. Some conditions unfold over time.

On 23 August 2004, he assessed Mr Okafor in his private professional capacity. In his report dated 24 August 2004, Mr Coffey set out a history given to him by Mr Okafor. That history is consistent with that given by Mr Okafor at the hearing. He recorded Mr Okafor’s reaction to being detention and his view about those detaining him as well as the progress of his visa applications. Mr Okafor, he noted, presents with a picture of dysphoria and demoralisation rather than with major depression but he has signs of depression including loss of appetite and significant insomnia. His sleep is disturbed by dreams of being pursued by people who detained and tortured him in Nigeria.

As for Mr Okafor’s claims of persecution and torture, Mr Coffey said that:
“ … I can only reach provisional conclusions about this matter on the basis of one interview, and in the context of challenges to Mr Okafor’s credibility. Mr Okafor gave a fairly detailed account of the physical environment of his imprisonment and the nature of the torture to which he was subject. He was unsettled by recalling these events, but remained reasonably composed. He did not appear to wish to overstate that was done to him, or the extent of his suffering. He denied that certain abuses occurred when I put these to him. He described physical and psychological sequelae of the torture which again did not appear to be exaggerated or overstated, but consistent with what he experienced. He now reports nightmares associate with the claimed torture. It is possible that his suspiciousness regarding immigration and detention authorities has also been engendered by actual persecution. I think there is a prima facie reason to believe that Mr Okafor has experienced a period of detention and abuse. However, independent corroboration aside, a more definite opinion on this matter could only be achieved by ongoing assessment.” (Exhibit F, page 2)

In giving evidence, Mr Coffey said that it was important in his work that he be sure that people are not fabricating their claims regarding their being tortured. A reasonable proportion of people he sees have not come to Australia as off shore refugees but have come with false and forged documents. Their mode of entry is not at all determinative of the veracity of their claims about torture or abuse.

In conclusion, Mr Coffey said that:

“… My conclusion in regard to Mr Okafor’s mental state, is, in summary, that he suffers from depression and has also developed some paranoid thinking regarding immigration and detention centre authorities. It is likely that his behaviour toward detention centre staff is strongly coloured by his distorted thinking in this respect. His assertion that he has been tortured cannot be strongly supported on the basis of this assessment, but he appears to experience psychological sequelae consistent with such experiences and I would be inclined to assume that he has been tortured unless other positive evidence emerges that displaces this assumption. Mr Okafor has not successfully adjusted to life in detention and his mental state is at some risk of further deterioration. He requires close monitoring and ongoing treatment.” (Exhibit F, page 3)

In giving oral evidence, Mr Coffey said that it is possible that Mr Okafor’s symptoms are as a result of street fights or similar encounters but he thought that the source of Mr Okafor’s psychological problems is associated with what he described happened to him. Mr Coffey was not inclined to think that Mr Okafor had fabricated his claims. He was aware that Mr Okafor had been refused a visa on the grounds that he was not of good character as documents had been forged and he had made a false statement to the Department.

Mr Okafor’s arrival in Singapore and subsequent travel in South East Asia

Mr Okafor’s oral and written evidence was again consistent on this aspect. He said in his letter to Mr Wearne:
“ I was near breaking point when I got off the plane at Singapore, I got on a bus and went over to Malaysia, Johor. I quickly e-mail lexia (my girlfriend) asking her to come was scared maybe she wouldn’t believe that i am in Malaysia, scared also because she is my last hope to survive in that country. So i ask her to come and met me alive if truly she love me. I had only $50 USA with me. I waited a long time at the bus depot, sleeping and drinking water till night and i couldn’t see her, so i lay ed down on the bench and slept the night there. The next day she found me at the bus depot.
She took me to Johor Bharu hotel where she made me undress and went out and got all the things needed to dress my sores. We stayed there 2nights then caught a bus to K.L where i received enough to travel with her to Thailand and Cambodia. We found out that we really love each other regardless of age or race, then we choose to get married on February 2002 for proper and legal commitment to each other. We have not been separated since I miraculously got out of Nigeria.” (G documents, pages 153-4)

In cross-examination, Mr Okafor said that he initially told his wife that there had been trouble at home when she met him at Johor Bahru. He added that there had been some political problem. She did not ask him for further information. At the time, he was too sick to speak properly. He did not tell her about his detention and escape or about the false passport until January 2003 when they were in Australia and the peace march had taken place.

In December 2002, Mrs Okafor said, she was in Malaysia preparing to travel to Cambodia and Thailand for her mission work. She unexpectedly received an email from her husband seeking her help and asking her to go to Johor Bahru. She had gone to an internet café to see if there were emails from other members of her family and had not been expecting to receive one from Mr Okafor. It was very late in the afternoon when she received it but she arranged to catch a bus to Johor Bahru the next morning. She arrived late in the evening and found him at the bus station where he said he would be. He was in a dreadful state with his head full of lice and whip marks on his body as well as ant bites all over his legs. At the times, he did not really know what was going on but he told her that he was in a street fight. He was very paranoid about secret police.

Mrs Okafor took her husband to a hotel and tended his wounds herself although one of them should have been stitched. She is a paramedic trained by the Army. After two days, she and he travelled to Kuala Lumpur and continued with her work of teaching people how to run a Pentecostal Church. He told her what had happened in Nigeria after they had been in Malaysia for a few days. She took him to Thailand and Cambodia while she undertook that work. She asked him whether he would marry her if he went to Australia with her and if the family approved of her doing so. Mrs Okafor said that she wanted to marry him because they loved each other and because, as Christians, they could not live together without being married.

Mr Okafor’s travel to Australia

Mr Okafor said that he obtained an electronic travel authority (“ETA”) before he and Mrs Okafor travelled to Thailand and Cambodia. He went to the Australian Consulate with his wife and said that he needed a visa and was referred to a travel agent. A three month ETA was issued to him on 12 December 2002. Mr Okafor used his passport as his identification document. He said that he did not realise that Australian authorities regarded the use of a false passport to obtain an ETA as a serious matter.

In cross-examination, Mr Okafor said that his wife did not question him as to the reasons for his carrying a British passport. She helped him fill out the forms for an ETA and took him to the travel agent. He signed the application form.

Mrs Okafor said that she did not question her husband’s British passport. Nigeria used to belong to the United Kingdom and it did not surprise her that he held one. She did not discuss it with him but simply accepted that it was so.

Mr Okafor’s application for visas in Australia

Mr Okafor said that his wife told him that he did not need another visa to remain in Australia but he found out that was not correct when he went to join the Australian Defence Force in January 2003. Mrs Okafor confirmed that this was so. He wanted to enlist as his father had been in the Army as had his wife. It was then that he went to the Department and applied for a permanent visa. That was a spouse visa.

Mr Okafor did not have a birth certificate to submit with his visa application. He said that his wife told him to use the date of birth in his passport but he agreed that he signed the form. Mr Okafor said that he had told his wife of the false birth date in his passport in January 2003 before they married. His wife told him that he should use false details and he agreed because he thought that it was the best thing to do. He thought that she knew better than he as Australia is her country and she knows it better than he. Mr Okafor said that he wanted to tell the truth but that his wife told him not to as he would be sent home or put in detention. Mrs Okafor said that she had set out all of the false information in the spouse visa application.

She had done that as she had panicked. Her husband had been against it from the beginning but she said that she had become quite irrational at the thought of his being taken away from her. She told him to do it her way and to stick to the story. He was very angry, she said, and they had quite a few arguments about it. At the time, she was very naïve about the immigration system. She just wanted her husband to be with her. In the end, she knew that she had to tell the truth and that it was the thing to do at the beginning. Her not telling the truth and doing the wrong thing for her husband put her in hospital with psychiatric problems, Mrs Okafor said.

Mr Okafor said that he continued to tell Ms Pam Fraser, an officer of the Department, the false information in an interview with Ms Pam Fraser in May 2003. After a further interview on 10 November 2003, Mr Okafor said that he and his wife decided that he had to confess. His wife told him that it was all getting too much and they could not continue. They could not go by themselves and she was “pretty scared”. They decided that they needed a lawyer and a migration agent to advise them on the best way to do that. As a result, they contacted Mr Wearne and told him that he should tell the Department the truth when they met with him on 20 November 2003.

They saw Mr Wearne several times. It was their understanding that Mr Wearne’s advice was that he should wait until his spouse visa application had been refused and then apply for a protection visa. Mr Okafor said that Mr Wearne indicated to them that he had a special relationship with Ms Fraser and they should not worry; everything was in progress. Mr Okafor said that he was not happy with this advice but did not take any action for a further couple of weeks as they were worried about doing anything without professional advice. Mr Okafor said that Mr Wearne charged them twice over for advice and they complained to the police about it. The amount that they thought they had been overcharged was repaid to them. They dispensed with Mr Wearne’s services and Mr Okafor wrote to the Department on 24 March 2004. At an interview with the Department on 29 March 2004, he said that he told the truth of his situation.

In his statement dated 18 May 2004, Mr Okafor said:
“ I am extremely sorry that I ever provided any false information to DIMIA. I had no choice but to use the false passport to get out of Nigeria as I thought it was the only way I could escape. I had just been tortured and imprisoned by the secret police and was in fear for my life. After I arrived in Australia, I was so afraid of being returned that I thought I had no choice but to keep telling the story that fitted with the details on the false passport. I am mortally afraid that if I have to go back to Nigeria I will be caught again by the secret service. It is clear to me that, after having been picked up in November 2002, I have come to the attention of the military and secret police as the son of a former Colonel in the Biafran army. They will imprison me and probably kill me for this on my return. I love Biafra and I would want to continue my involvement with MASSOB if I went back to Nigeria. I fear that if my views on Biafran independence and any further involvement with MASSOB became known to the authorities, I would be imprisoned, beaten tortured and probably killed. It is these fears that kept me from correcting the information I had provided to DIMIA during 2003.” (G documents, pages 164-5)

Mr and Mrs Okafor’s relationship

Until 2003, Mr Okafor said, his relationship with his wife was a “beautiful relationship”. He acknowledged that they had very different backgrounds but she was “loving, caring and simply splendid”. They were married on 14 February, 2003 after his wife had asked him to marry her. Mr Okafor said that his wife did not believe that he would accept her proposal but he did because he loved her. When asked why they married, Mr Okafor replied: “Because we love ourselves”. He denied the suggestion that he married his wife in order to remain in Australia. At the time, he said, he did not know that he could have trouble in staying in Australia. In February, 2003, he had not obtained any advice regarding his situation.

Mr Okafor said the he and his wife love each other. Their relationship is real. His wife is not in good health and he believes that she needs his love and support.

Mr and Mrs Okafor’s view of the future

If permitted to remain in Australia, Mr Okafor said that he would stay with his wife. If he were permitted to go back to his studies, he would do so but otherwise he would stay with his wife. In the past, he has assisted her with her work. If he is not permitted to remain in Australia, he does not know what he will do but he cannot return to Nigeria. He said that he is very sorry that he gave the Department false information and that, if permitted to remain, he would never do it again.

Mrs Okafor saw them as resuming a normal married life with his resuming study and going back to work. If he had to leave Australia, she would have to go with him. She did not know where they would go. While she has friends in Canada and America, she has no entitlement to live in either country. Mrs Okafor said that what she has done has made her very ill. She had justified what she had done by reference to two passages from the Bible but then her conscience got the better of her. Her behaviour had been irrational, she said, and she had just wanted her and her husband to keep their life together.

Written material at the Detention Centre

Three documents were shown to Mr Okafor. He said that he had composed and written one of them entitled “My Love”. It was written for his wife, who confirmed that was so, but he had copied it for an officer at the Detention Centre when she had asked to see an example of his poetry. As he was unable to print it from the computer, he handwrote the copy for her, wrote at the top of it, “Poem for Faye” and signed and dated it.

Mr Okafor said in giving evidence that he had been asked about the poem and about two other documents by the Manager of the Detention Centre, Mr Bill DeCis. Ms Gill Law was present. They were not his documents, he told them.

In a memorandum dated 21 June 2004, Mr DeCis advised the Department that Mr Okafor had indicated at a meeting that he was responsible for the three documents in the G documents. He continued:
“Kingsley was, presented with the offending material and asked if he was responsible for it, to which he replied not all of it but some of it, when asked to identify what material he was responsible for he indicated to the above (see attachments).
When questioned over a particular offensive piece of material titled ‘I will make the mess bloody’ Kingsley replied that was just poetry, when I asked him about the relevance to it and the other offensive material he had been writing on request forms for particular female Officers he replied that it was nothing.
I informed Kingsley that this behaviour was inappropriate and particularly offensive to the female members of my staff and that it was also inappropriate to be using the centres IT equipment to produce this material. Kingsley was aware of the importance of the matter and agreed that he would not produce any more.
The next day Tuesday the 22^nd of June another piece of offensive material was found in the centres complaint box hand written titled ‘POEM OF THE DAY’, ‘I WILL MAKE THE MESS BLODDY’ It is obvious that the hand writing is from the same person i.e. Kingsley Okafor this is the same correspondence that Kinglesy had admitted to writing the previous day.
When I asked him to attend my office to discuss the latest instalment, he refused hence I have written to him …” (G documents, page 222)

In his letter to Mr Okafor dated 23 June 2004, Mr DeCis began his letter:
“I am disappointed that you refused my invitation to attend my office and I am also disappointed that you ignored our previous meeting when we discussed this very issue.
I have yet again received another piece of offensive correspondence from you
Since you have refused to meet with me I am left with no other option than to write to you.” (G documents, page 223)

Mr Greg Vian is an officer of the Department and has been its Manager at the Detention Centre since September 2003. He said that he attended a meeting, which in reality was a counselling session, with Mr DeCis, Ms Law and Mr Okafor. The meeting was held on 21 June 2004. Mr Okafor, he said, was shown documents and asked if he was responsible for some of the material shown to him. Mr Vian said that Mr Okafor accepted responsibility for a computer printed copy of a document entitled “Poem of the Day” (handwritten version at G documents, following page 224). Mr DeCis told Mr Okafor that the documents were offensive, especially to female members of staff, and that his behaviour was inappropriate. Mr DeCis also told Mr Okafor that it was inappropriate to use the computer to create such material. Mr Vian said that Mr Okafor acknowledged the importance of the matter and agreed that he would not produce any further material.

Mr Vian said that he was informed the next day either by Mr DeCis or Ms Law that a handwritten copy of “Poem of the Day” had been found in the Detention Centre’s complaint box together with another document entitled “Reminder”. He was also told that it was obvious that Mr Okafor was the author of the other two documents that he had previously admitted writing.

In giving oral evidence, Mr Vian said that there were five documents at the meeting but the “Poem of the Day” was a computer written version and not the handwritten version in the G documents. Mr Okafor said, Mr Vian related, that he had done some but not all of the documents. “My Love” was his and he was a signatory to “Reminder” although he had not written it. Mr Okafor had said that “Poem of the Day” was his.

Mr Vian said that he had made his statement based on his recollection of events. He had not made notes during the meeting as he saw himself more as an observer. Although Mr DeCis had done so, Mr Vian did not refer to them in making his statement. Over time, Mr Vian said that he saw three documents headed “Reminder”. He said that the version in the G documents was what he was shown on 21 June 2004. That version was dated 22 June 2004. Another “Reminder” version he had been shown had “backward slanting letters”. That other example was not referred to in Mr DeCis’ memorandum to the Department on 23 June 2004. It was not included in the attachments. The memorandum, Mr Vian said, was right but the attachments were not right; that is all. He did not know that Mr DeCis intended to send them to the Department at all. As to why the computer generated document was not sent to the Department, Mr Vian said that it was unidentifiable and could have been written by anybody. When asked whether he conceded that a person other than Mr Okafor could have been involved in the production of the offensive material, Mr Vian replied that he could not say and that it could have been anybody. That was why it was not included, he imagined.

In his oral evidence, Mr Vian said that Mr Okafor was shown five documents including the three documents referred to above. Mr Okafor had put three documents to one side and two to the other. He said that Mr Okafor identified three poems as his but said that two drawings were not.

CONSIDERATION

Framework of Act

Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Migration Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Bridging Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.

At the time that the delegate’s decision was made and of this review, criterion 4001 in Schedule 4 of the Migration Regulations provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.”

Section 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”

The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)…
(b)…
(c)having regard to either or both of the following:
(i)…
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d) …
Otherwise, the person passes the character test.”

The Direction

Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”).

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”

The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”

The Direction - application of the character test

The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant in this case. Of them, the Minister stated in the Direction:
“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”

In considering whether a person is not of good character when measured against s. 501(6)(c)(ii), the Minister directs decision-makers to take the following into consideration:
“1.9   In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)     whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b)     whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)     whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)     whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10     In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)     resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or
(b)     resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11   General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”

The authorities regarding “good character”

In this case, the focus is upon Mr Okafor’s past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)

After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
“These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)

A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Re Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)

What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)

Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)

Does Mr Okafor pass the character test?

Mr Chand submitted that Mr Okafor does not pass the character test. He did so on four main bases. The first was that Mr Okafor gave the Department misleading information when he obtained an ETA to enter Australia on 12 December 2002 and later when he applied for a Partner Visa on 12 March 2003, lodged a Form 80 on 9 April 2003, applied for a Bridging E Visa on 5 April 2004 and at the interviews conducted by officers of the Department on 2 May 2003 and 10 November 2003. The second was that the Nigerian driver’s licence produced by Mr Okafor was suspect and the third that he created offensive material while in detention. The fourth was that I should not accept Mr Okafor’s account of his experiences in Nigeria and his subsequent departure from that country. I will deal with each of these as well as consider generally whether Mr Okafor has failed the good character test as it is expressed in s. 501(6)(c)(ii).

I will begin with a general comment. Either no evidence or very little evidence was produced on behalf of the Minister to support the bases on which the submissions were built. Taking the validity of the driver’s licence as an example, the evidence consists of a note written by a Departmental officer after he had spoken with a Minister-Counsellor at the Nigerian High Commission and a print out of a document on the subject attributed to the Research Directorate of the Immigration and Refugee Board in Ottawa. I have not set out the contents of the latter but note that it is dated December 2003 and accords with the advice given by the Minister-Counsellor. There is, however, no evidence that the Minister-Counsellor was asked about the practices in Nigeria when Mr Okafor began to work for Mr Okoronkwo and when he obtained his licence. On the material prepared by the Protection Decision Support Section (see paragraph 36 above), it is apparent that certain constitutional protections had been enshrined in Nigeria’s Constitution in 1999 but that Human Rights Watch reported that corruption was “rampant within the forces” i.e. the police and security forces. The article by Mathias Oko refers to allegations of fraud regarding the issue of drivers’ licence in 2003. This is much later than the time at which Mr Okafor obtained his licence but it has some importance. The allegations relate not to the security and police but to a federal body, which would appear not to be the proper licence issuing authority.

The conclusion that I draw is that there may have been licences issued fraudulently in 1998 and subsequently. I do not, however, take the next step and find that Mr Okafor’s licence is either fraudulent, issued fraudulently or obtained by him fraudulently. Even though it may not have done so in order to preserve Mr Okafor’s privacy, the Department did not take advantage of the Minister-Counsellor’s offer to examine it so that he could verify whether it was genuine or not. It did not check earlier procedures for issuing licences. Even if it was not the proper thing to obtain a licence through an agent, there is no evidence to suggest that Mr Okafor either did not know or should have known that it was not the usual way of obtaining a licence. He does not appear to have paid a grossly inflated price for it given that his evidence is that he paid approximately $AUS25.00 for it and its price was $CAN24.24 in 2003. He was not cross-examined about his reasons for going to an agent even though there was material on the file to which I have referred. The Minister’s delegate pointed to discrepancies in the information contained on the licence but I have not been given a copy of it and can make no similar findings. On the evidence that I have been given, I am not satisfied that the driver’s licence held by Mr Okafor was a forged document or that, if it was obtained otherwise than through official channels, that Mr Okafor was aware that it was improperly obtained.

I do find that Mr Okafor’s passport was a false passport. It contained his real name and a photograph of him but the details of his date of birth were incorrect. Mr Okafor admitted that it was false. I find that he first admitted its falsity to the Department in his letter of 24 March 2004. He had earlier admitted it in a letter to the UNHCR of 2 March 2004. Before March 2004, I find that he had relied on the passport as a valid passport in order to obtain an ETA from the Department and later asserted its validity in applying for a partner visa and a spouse visa. He maintained its validity during interviews conducted by officers of the Department. In all, he maintained its validity for some three months. In effect, he told only one false story and that was a story to support his having a British passport.

His telling a false story must be seen against the background from which he came and that in which he found himself in Australia. As to the background from which he came, Mr Chand submitted that I should not accept his version of events in Nigeria. Mr Okafor’s evidence regarding his father was false, he submitted, and he did not appear actively involved in MASSOB. He was not credible, he said.

While there may be cases in which evidence is inherently credible or incredible, that is often not the case. Experience teaches that the incredible may prove to be fact; that the seemingly credible may prove to be false. Some evidence may require corroboration not because of the nature of the evidence but because of the circumstances associated with it. Such circumstances may be the passage of time since the events related in the evidence or the evidence is given by a witness who has proved unreliable in other respects. Assessing credibility simply by weighing the evidence alone may be fraught with danger and, unless it is necessary to do so for there is no other evidence, it is an exercise best avoided. If at all possible, the evidence should be placed with other evidence in scales “… in the light of commonsense and experience” (Hoch v The Queen (1988) 165 CLR 292 at 297 per Mason CJ, Wilson and Gaudron JJ).

When I do that, I place in the scales all of Mr Okafor’s evidence together with that referred to in the Department’s assessment of his claims and all of the other relevant evidence. Mr Okafor’s evidence has been consistent throughout as to his experiences in Nigeria. It is not inherently incredible. His father’s disappearance and Mr Okafor’s inability to prove that he has died is consistent with the story of many who have grown up in troubled times. To some, the story of Pastor John may seem far fetched but students of the New Testament will recognise in Pastor John the Samaritan, who saw the man who had travelled from Jerusalem to Jericho and had fallen:
“… among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead.” (St. Luke 10.30, The Chain Reference Bible, 4^th edition, 1964 based on the King James Version)

The Samaritan:

“34 … went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn, and took care of him.
35 And on the morrow when he departed, he took out two pence, and gave them to the host, and said unto him, Take care of him, and whatsoever thou spendest more, when I come again, I will repay thee.”

The coin has changed from two pence to a false passport, a trip to the airport and an arrangement at the airport, but little else has changed between St Luke’s parable and Mr Okafor’s situation. In times of trouble there will be many such as the priest and the Levite who will pass by (St Luke 10.31 and 32) and it is understandable that it will be so. At times, though, there will be a person who does stop and that person’s stopping should not be regarded as inherently incredible just as the Samaritan’s stopping was not inherently incredible.

In the circumstances of this case, there is even less reason to regard it as so. The short references to reports by Amnesty International, Human Rights Watch and the US State Department refer to violent inter-ethnic incidents, arbitrary arrests and detentions and torture. Those references refer to events in 2002 and 2003. Even though the US State Department specifically stated that their incidence was lower than in previous years, it is clear that they were continuing in 2002 when Mr Okafor said that he suffered arbitrary detention and torture. They were continuing despite the creation of an anti-corruption commission and introduction of anti-corruption legislation in Nigeria in 2000. Those reports support Mr Okafor’s evidence. The article in the Vanguard also supports Mr Okafor’s evidence. True it is that the Deputy Director of MASSOB expressed surprise that police and security operatives trailed MASSOB members to Church in 2004 but the fact remains that 150 members of MASSOB were reported arrested by police and security men at that time.

Mr Coffey readily acknowledges that he has not had the opportunity to assess Mr Okafor’s claims over an extended period as he would prefer to do. For all that, he was inclined to assume that Mr Okafor had been tortured in Nigeria. He considered that Mr Okafor had not overstated his claims either as to what happened or the effect of events upon him. I saw for myself marks upon his left arm and back that could be consistent with whip marks. Mrs Okafor’s evidence that her husband’s legs were covered with ant bites and that he carried wounds, one of which required stitching, when she met him in Johor Bahru tend to corroborate Mr Okafor’s evidence. So too does her evidence that his hair was filled with lice and that he was in a dreadful state.

Having regard to all of the evidence, I accept that the events as related by Mr Okafor occurred. In reaching this conclusion, I have not placed any weight on the Department’s International Obligations and Humanitarian Concerns Assessment but I have referred to material to which it refers. I note that it was the Department’s assessment and not that of an independent body. If I were to place any weight on the findings that the Department reached in that assessment, it would enable the Minister to gain an added advantage by the mere fact that a decision has been made in the past. He would not be trying to draw himself up by his own bootstraps but by those of his Department. That would be inappropriate.

I have, though, had regard to the events surrounding the documents at the Detention Centre. They are said to be offensive. I do not consider the poem entitled “My Love” to be offensive. Both Mr and Mrs Okafor said that it was written by him for her. It is a gentle love poem with very homely metaphors. Viewed from any point of view, it cannot be regarded as offensive. Given their evidence, its words and the manner in which he spoke of his wife, I accept that it is a poem that he wrote for her. This is also consistent with Mr Vian’s evidence that he accepted responsibility for that poem. I also accept Mr Okafor’s evidence that the copy that came to be in Mr DeCis’ possession was copied by him for Faye, who is an officer at the Detention Centre. Faye was not called to contradict his evidence. I find that he copied it as she had expressed an interest in his poetry and not as an expression of his interest in Faye. My finding is supported by a letter from Mr Michael Fox dated 26 August 2004. Mr Fox wrote of Mr Okafor’s caring about his fellow inmates and particularly about those who are isolated or disadvantaged. His care, Mr Fox wrote, “… flows over into the writing of his other poetry which has a moving confessional strain on the foibles of the human condition. Lexie has word-processed Kingsley’s manuscript poem drafts with a view to their subsequent publication.” (Exhibit G)

The other two documents would be regarded as offensive by many. The evidence regarding them is confused. Mr Vian’s evidence was that Mr Okafor accepted that three documents were his but he also said that the document headed “Poem of the Day” was not handwritten as it appears in the G documents but in a computer generated form. He also said that there were ultimately three “Reminder” documents. That appearing in the G documents is dated 22 June 2004. In view of its date and there being three documents with the same heading, it is difficult to have any certainty that the document in the G documents is the document shown to Mr Okafor at the meeting held on 21 June 2004. Mr DeCis referred to another document’s having come into his possession but whether or not that was attached as one of the three documents attached to his memorandum or not is something I am unable to work out from the correspondence.

Mr Okafor has admitted responsibility for “My Love” but not for the others. Mr Vian said that the handwriting in all three documents was written by the same person. Quite apart from the fact that Mr Vian is not a handwriting expert, I do not accept that evidence. As no expert evidence was called, I am left with my own analysis of it. All three documents are written in block letters but, having examined each of the letters in “My Love” and compared them with those in the documents, I am satisfied that they are written by different hands. Although there are some similarities, the differences in the letter formation are greater. Furthermore, writing in the other two documents is quite even or regular. That in “My Love” is not even or regular. It has an irregularity that matches a letter written by Mr Okafor to the Department on 29 March 2004 regarding his passport (G documents, page 116).

Returning to s. 501(6)(c)(ii) of the Act and paragraph 1.9 of the Direction, I am left only with Mr Okafor’s false and misleading statements to the Department in connection with his gaining entry to Australia initially and in connection with his trying to obtain the right to remain here permanently. Paragraph 1.9 states that such statements would constitute failure to pass the Character Test “in the absence of any countervailing factors”. I consider that there are such countervailing factors. First, there is only one false story and that is the story that was required to support the false passport. It is not a case in which Mr Okafor has built a web of falsehoods with himself at the centre. There is but one. Second, in all other regards he has been meticulous in following Australia’s laws since his arrival. Until he was given permission to do so, he did not work even though life on Mrs Okafor’s Centrelink pension must have been very frugal. He has not been convicted of any offences either in Australia or in Nigeria. Third, he took advantage of the false passport offered to him by Pastor John in order to escape a situation in which he had been abused and tortured and in which he had feared for his life. Having accepted it, he had to rely on it. Fourth, he is much younger than his wife and Australia is not a country with whose customs he is familiar. He accepted the advice of his wife but I find that he was not happy to do so and that it was the cause of many arguments between them. I do so on the basis of the evidence of both Mr and Mrs Okafor. Fifth,
I find that Mr Okafor did not apply for a protection visa when he arrived in Australia. This does not mean that his claims were not genuine. He and his wife were to be married. Having listened to his wife, Mr Okafor did not think that he needed to do any more than be married in order to stay in Australia. It was not until January 2003 that he found out that he required a visa. Given his being married in February 2003 and his wife’s exhortations to maintain the validity of his passport, an application for a partner or spouse visa was a sensible step to take. There was no need for him to apply for a protection visa.

Although I have not reproduced them in these reasons, there are number of letters written in support of Mr Okafor. One was written by Ms Jess Allen, who had stayed for three weeks with Mr and Mrs Okafor. She had enjoyed their company very much and “… was never aware of anything that was objectionable in his makeup or personality” (G documents, page 189). Mr Christopher Dixon wrote that he had known Mr Okafor for 12 months and always found him to be a very nice and hardworking person who is a loving husband. Mrs Okafor’s aunt, Mrs Mary Nation, who has visited him regularly and who visits him in detention, writes in a similar vein as does their neighbour, Ms Sandra Clack. The Very Reverend Kevin Mogg of St Macartan’s Catholic Church at Mornington has written that Mr Okafor attends his church regularly. Mr Okafor attends alone as his wife is of another faith and Reverend Mogg writes that “It takes some conviction and courage to do this. Any contact I have with Kingsley has been good and I love seeing him present … a fine person.” (G documents, page 195) Other correspondence expresses similar sentiments regarding Mr Okafor and I find on the basis of them that he is well regarded and well liked by those who know him.

In view of all of these matters and on the basis of the evidence, I find that Mr Okafor is a person of integrity. Certainly, he has misled the Department with a false statement but the circumstances in which he did are such that I am satisfied that they do not detract from his character to the extent that he is not a person of good character. I am satisfied that he is a person who will not attempt to mislead the Australian people in the future. He is a person who will attempt to follow the rules of the Australian community as do the majority of its members. His previous false statements are not, in the circumstances in which they were made, such that “… it is for the public good to refuse entry” to him. They do not detract from it so that the Australian community would think that he should not be allowed to remain. Indeed, there would be a lot of understanding for his position. He passes the character test.

The Direction – exercise of the discretion

I have considered the discretionary aspect of the character test lest I be incorrect in my finding that he passes it. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:

“… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.” (Direction, paragraph 2.2)

The three primary considerations are:
“(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Okafor’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Mr Okafor’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…” (Direction, paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Mr Okafor as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Okafor’s case, it is relevant to have regard to:

“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, paragraph 2.10(c))

General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).

Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)

The third primary consideration relates to the best interests of a child. There are no children in this case to whom I need to have regard.

The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)

Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a)   the extent of disruption to the non-citizen’s family, business and other ties to the Australian community; …
(b)     genuine marriage to … an Australian citizen;
(c)     the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)     family composition of the non-citizen’s family, both in Australia and overseas;
(e)     …
(f)     …
(g)     …
(h)     any evidence of rehabilitation and any recent good conduct;
(i)     whether the application is for a temporary visa or permanent visa;
(j)     the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(f)…” (Direction, paragraph, 2.17)

Should Mr Okafor not be refused a visa on the basis of his not passing the character test?

Mr Okafor’s entering Australia on the basis of a false or forged document and seeking to remain here is seen as a serious matter. Given the matters I have already found regarding Mr Okafor’s past conduct, I am satisfied that it is a “one off” set of events that led to his presenting the false or forged passport and maintaining the falsehood thereafter. He is most unlikely to repeat it or to disobey Australia’s laws in the future. As to whether his being refused a visa on the basis of his false statement, I do not consider that it would prevent or discourage similar conduct. “Similar conduct” must refer to his false statement in his circumstances and not to false statements generally. I do not consider that refusal would prevent or deter others in his circumstances from repeating his conduct. Such people are faced with very few choices. To remain in their own country is to face torture or death as they see the circumstances and, if they are to flee, they may need to rely on false documents or other contrivances. Thoughts of Mr Okafor and others like him would be unlikely to enter their minds as they weighed the alternatives. They would take their chances on arrival. For those not faced with such stark choices, it is possible that refusal of a visa to Mr Okafor would discourage them were they ever to find out about it.

As for the expectations of the Australian community, I do not consider that it would expect that Mr Okafor not be granted a visa. Australians have high expectations but they also have the capacity for great compassion. Mr Okafor is a person who found himself in an intolerable situation suffering abuse and torture that is not acceptable to the Australian community. It would expect that he would be taken in and sheltered.

As for the other considerations I must take into account, I find that Mr and Mrs Okafor’s marriage is genuine. There can be no argument that Mrs Okafor is significantly older than her husband. While it is not uncommon for an older man to take a much younger wife, the reverse is not common. Its uncommon occurrence should not be used as a reason to doubt the genuineness of the marriage. I have listened to the evidence of both of them and observed them as they sat at the back of the hearing. They speak tenderly of each other and with deep commitment. Their displays of affection are equally tender and understated but no less deep. To deny Mr Okafor a visa would be to throw their lives into chaos. Apart from Nigeria, there is no evidence that they could live together in any other country. In so far as Nigeria is concerned, Mr Okafor fears returning there. It is not a country to which he considers it safe to return.

I also find that Mrs Okafor did not know about her husband’s false British passport until January 2003. I do not consider that Mrs Okafor was reckless in not questioning her husband about his passport. Nigeria gained its independence from Britain in 1960 and remained a member of the Commonwealth. Although Mrs Okafor saw her husband’s British passport over 40 years later, it is understandable that a person whose primary and secondary education was completed some ten years before Nigeria gained independence would not automatically question his holding a British passport. As she said, Nigeria used to belong to Britain. By the time she found out that the passport was forged, she was deeply committed to their relationship as was he. That commitment had begun when they were confined to internet communication but I am satisfied that their emotional commitment to each other was confirmed upon their meeting and even before their travelling to Australia in December 2002.

Were Mr Okafor required to leave Australia and Mrs Okafor were to remain, I find that she would suffer hardship. She has been suffering from health problems; some physical and some mental. In so far as her mental anguish is concerned, it is to be hoped that she is able to find some peace of mind. She has blamed herself greatly for the position in which her husband finds himself. Certainly, she advised her husband to maintain the false information presented in his passport. Her doing so was misguided and she accepts that. Not only does she accept it, she is deeply contrite as is he. Without wishing to condone her actions, they were understandable. She is in her 60s and had endured an unhappy marriage punctuated with domestic violence. There had followed a lengthy period on her own. She had then found a person whom she loved and who loved her. Her actions were predicated upon her fear of losing her husband for whose love she had waited so long.

If Mrs Okafor were to lose the physical presence of her husband, I am satisfied that Mrs Okafor would not cope well. She has suffered from depression and been hospitalised as a result of the anxiety generated by the visa proceedings. She also suffers from physical disabilities. I am satisfied that Mr Okafor has shown a commitment to her that means that he will care for her as she grows older.

Finally, I note that the visa in issue is a Bridging E Visa is a temporary visa. Mr Okafor’s conduct will no doubt be under scrutiny during its duration. If his actions should show that there is a need to protect the Australian community from him, the Minister will be able to cancel that visa or refuse another. On the evidence that I have been given, I have no reason to think that Mr Okafor will breach the trust that has been shown in him.

For the reasons I have been given, I:
1.set aside the decision of the respondent dated 29 June 2004; and
2.substitute a decision that the applicant not be refused a Bridging E visa on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.

I certify that the one hundred and fifteen preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Signed: ...............................................................

R. Crook Associate

Date of Hearing  31 August 2004
Date of Decision  17 September 2004
Counsel for the Applicant             Mr G. Hughan
Solicitor for the Applicant            Mr C. Powles,
Refugee & Immigration Legal Centre Inc

Solicitor for the Respondent Mr A. Chand,
Clayton Utz